A little known criminal law prohibits having an open container of alcohol in a motor vehicle, even when the vehicle is parked. This law is somewhat surprising. Although Texas aggressively pursues drunk driving, there is no obvious risk that someone sitting in a parked car poses to the public. Nonetheless, under Texas law, this is an actual crime. Many people get picked up for joyriding in the back seat or riding shotgun with an open can of beer or bottle of wine, only to now face criminal charges.
Below, our DWI defense lawyer explains why this is a serious charge and how to fight it. There are many repercussions that follow any misdemeanor conviction, so an aggressive defense is the best course of conduct. Contact Tad Nelson & Associates today if you have questions.
Texas Open Container Laws
Under Penal Code § 49.031, it is a Class C misdemeanor to knowingly possess an open container in any passenger area in a car that is on the public highway. It doesn’t matter if the car is in motion or parked. As defined in the statute, a passenger area is any area designed for passengers to sit.
There is no requirement that you be drunk or even drinking from the open container. All that matters is that it’s open and in the passenger area of a car. A bottle of wine with the seal broken would qualify, even if it is on the floor between someone’s feet. As a Class C misdemeanor, a first-time offender is facing a maximum $500 fine but no jail time.
Further, if you were operating the vehicle, then you could face a DWI charge under Section 49.04 of the Penal Code when an open container is in your immediate possession. That would be a Class B misdemeanor, carrying a minimum of 6 days confinement in jail, which is the minimum for a first time offender.
Consequences of an Open Container Violation
A Class C misdemeanor might seem like no big deal. After all, you won’t end up in jail. However, there are consequences to having a criminal history of any sort. When it comes time to apply for a job, you can expect an employer to find out about your conviction. Being arrested for any alcohol-related offense could make it nearly impossible to get a job working with children or the elderly or even driving a vehicle for work.
Other consequences include having to explain the arrest when applying to college or when trying to obtain a professional license. In fact, criminal histories follow us around for the rest of our lives. Unlike bankruptcies, they don’t automatically “fall off” your record after the passage of time. Instead, you might find yourself continuing to answer questions about an open container offense decades later.
Fighting an Open Container Charge
Instead of sitting back and hoping everything turns out okay, defendants should find an experienced lawyer to help defend them. At Tad Nelson, we have had good success defending against open container violations.
Our firm has raised many defenses to this charge, including:
- You did not know the open container was in the vehicle. For example, you might have borrowed your cousins’ car, which had an open beer in the backseat. You didn’t know that fact, so you can’t be in “knowing” possession of the container.
- The container never contained alcohol. There could be an empty beer mug in the back seat. If there’s no alcohol in it, then it isn’t a “container” according to law.
- You weren’t on a public highway. You might be parked in your driveway with an open can of beer. That isn’t covered by this law.
- You are in a taxi or limousine. The law provides an exception for those vehicles, as well as for buses.
- You were illegally stopped or searched. The police need reasonable suspicion that you have committed a crime to stop you, even temporarily. They also cannot search the car unless they have probable cause, unless you consent to the search. We might request that a judge suppress evidence.
Our firm can canvas the record to determine which defense is the best one to bring.
Have an Open Container Violation in Galveston?
Call Our DWI Defense Lawyers
Any alcohol-related crime is serious, and those facing charges should find an experienced attorney to defend them. At Tad Nelson & Associates, our award-winning DWI lawyers can jump in and review the facts of your arrest. Based on what we find, we can pinpoint the best defense for your situation. Call us to schedule a consultation.
