Key Takeaways
- In addition to DUI charges, the driver of a vehicle could also be charged under Virginia’s open container law.
- A bottle of wine with the cork reinserted is still considered an open container, as the original seal is broken.
- A container violation is a criminal violation – it may not seem serious, but it is.
- A defense attorney can help you through the process when law enforcement charges you under the open container law or with a DUI.
One of the most common questions about drunk driving is, “Can passengers drink alcohol in a car?” While Virginia does not have a specific law that states passengers cannot drink in a vehicle, it does have an open container law that allows law enforcement to charge the driver for drinking while driving. The existence of the open container law often results in this charge, which is why it is important to hire a defense attorney who knows the law.
If you have been charged under Virginia’s open container law or charged with a DUI, an experienced DUI defense attorney at the law firm of Randall, McClenney, Daniels & Dunn, can guide you through the subsequent court case.
Very good and professional attorney. Very good at responding and communicating. My attorney was able to get my DUI and reckless driving charge completely dismissed in court. This was a huge relief and would recommend anyone in southampton county – Raymond
What is the Open Container Law in Virginia?
Virginia Code §18.2-323.1 defines an open container as any container with an alcoholic beverage with a broken seal or a container you can drink from immediately, such as a flask, bottle, or can.
Virginia law states that any alcoholic beverage in an open container creates a rebuttable presumption that the driver was drinking while driving, especially if it is within reach of the driver. The back seat in most vehicles is considered within arm’s reach. However, the trunk or luggage space behind the last upright seat in a hatchback, SUV, or station wagon is not considered within arm’s reach. The law also exempts the living space in a motorhome and the passenger space in a limo, bus, or taxi for transporting customers for compensation.
Rebuttal Presumption of Drinking While Driving
Under Virginia law, when the police stop a vehicle, there is a rebuttable presumption that the driver consumed alcohol while driving if certain conditions are established. From a practical standpoint, these conditions include:
- An open container in the vehicle’s passenger area, including an unlocked glove compartment
- Alcohol has been removed from the container
- The driver shows signs of intoxication, which may include erratic driving, alcohol odor in the vehicle, and physical characteristics
Law enforcement officers often write this citation even without the driver showing signs of impairment. If you have received this citation, contact the DUI attorneys at Randall, McClenney, Daniels & Dunn, PC, as we have won numerous trials for our clients who received a similar citation.
Can a Passenger Drink Alcohol in a Car in Virginia?
Although Virginia laws do not expressly prohibit passengers from drinking, the Commonwealth’s open container law means that the driver could be charged with drinking while operating a motor vehicle.
Additionally, counties and cities may have local laws that prohibit passengers from consuming alcohol while in a motor vehicle.
Penalties for Having an Open Container in the Car in Virginia
If you are caught with an open container of alcohol, you can be charged with a Class 4 misdemeanor offense. If convicted, you could face a $250 fine. Driving with an open container gives rise to the potential for a DUI charge, as it is more likely that the cops will commence with a DUI investigation. A DUI charge is separate and has more serious consequences than an open container charge.
DUI penalties include fines, driver’s license suspension, jail time, alcohol education classes, and installation of an ignition interlock device.
Since open container and DUI charges are criminal infractions, they will appear on your record.
Why Clients Choose Randall, McClenney, Daniels & Dunn, PC
If you were charged with violating Virginia’s open container law or DUI, always contact an experienced Virginia DUI lawyer. Even if the charges may not seem significant, they are still criminal charges that can impact your life. An experienced DUI lawyer at Randall, McClenney, Daniels & Dunn, PC, can help you through the process and, in some cases, may be able to work out a deal to reduce the charges.
Testimonials
“Randall, McClenney, Daniels & Dunn were very helpful and knowledgeable in assisting me with a traffic ticket. They communicated well and handled everything on my behalf. Could not have chosen a better law office.” – Jamar B.
Our Firm Can Help with Your DUI Case
Class 4 misdemeanors can significantly affect your life because criminal convictions never go away. If you were stopped and issued a DUI or a citation for having an open container, do not take any of these charges lightly. Contact an experienced DUI lawyer at Randall, McClenney, Daniels & Dunn, PC, by calling 757-742-6115 or completing our online contact form.
Frequently Asked Questions
Virginia’s open container laws mean you cannot drink while operating a car, even if it’s parked or stopped. If the keys are in the ignition, or if any of the vehicle’s electronics are on in a push to start, the element of operation for the purposes of DUI is satisfied. An open alcoholic beverage in the car gives rise to a rebuttable presumption that the driver has been drinking.
The Commonwealth of Virginia has stringent DUI and open container laws. However, the Blood Alcohol Count of a passenger is irrelevant if the vehicle is stopped by law enforcement. Only the individual operating the vehicle can be charged with a DUI.
Virginia’s open container laws generally prohibit the possession of an open alcoholic beverage container in the passenger area of a vehicle. However, there are exceptions to these rules.
For instance, passengers in certain types of vehicles, such as buses, taxis, or limousines, are allowed to consume alcohol.
Additionally, open containers are permitted in the trunk or an area of the vehicle not accessible to the driver or passengers, such as a locked glove compartment.
If the police charge you with violating Virginia’s open container statute (§18.2-323.1) and you are convicted, you will receive a Class 4 misdemeanor. A criminal charge can follow you for the rest of your life.
Written By Jack T. Randall
As lifelong resident of Western Tidewater, Jack Randall is a local attorney who wants the best results for his clients. He is an experienced and aggressive attorney with focus on family law, criminal and traffic law, as well as personal injury law cases.
