Open Container Law

Social drinking remains part of American culture for many citizens. So, how do cities and states balance the right to party with public safety concerns? It may depend on where you live.

While nearly every state bans open containers of alcohol in vehicles, restrictions on drinking or possessing open containers of alcohol in public vary by community. The ban on open containers in cars and other vehicles relates to the correlation of such conduct with drunk driving. When state and local governments pass alcohol restrictions for public areas, they seek to tackle several goals. These include to:

• Maintain the quality of life for community residents and businesses
• Prevent people from being drunk in public
• Reduce rowdy and disruptive behavior
• Curtail nuisances such as littering and public urination that often occur with public drinking

Of course, not every state or municipality prohibits drinking or carrying alcoholic beverages in public places. A few notable tourist destinations, like Las Vegas and New Orleans, famously lack such prohibitions.

Read on to learn more about where you can and can't have an open container of alcohol and avoid any violation of the law.

Open Container Laws: What Are They?

Open container laws create prohibitions on possessing and drinking alcoholic beverages. The laws address two distinct areas:

• Motor Vehicles: These laws prohibit open containers of alcoholic beverages or other intoxicants in a motor vehicle operating on a public highway or right of way. This includes laws that ban drinking in motor vehicles.
• Public Places: These laws prohibit possession of an open container of alcoholic beverage in public places and other locations (outside of motor vehicles). This includes laws that criminalize public intoxication.

Most states adopt a definition for an open container like the federal law definition. The federal law appears at 23 U.S.C. Section 154. It states that an open alcoholic beverage container means:

• Any bottle, can, or other receptacle
• That contains any amount of alcoholic beverage
• That is open, has a broken seal, or the contents of which are partially removed

Motor Vehicle Open Container Laws

While there is no federal open container crime, around 40 states and the District of Columbia have open container laws related to motor vehicles.

In 1998, Congress passed the Transportation Equity Act for the 21st Century (TEA-21). This law sought to bring states into compliance with federal standards for banning open containers and drinking in motor vehicles.

States that follow TEA-21 guidance have open container laws that include provisions that:

• Prohibit possession of open alcoholic beverage containers and consumption of alcoholic beverages in motor vehicles
• Contain specific passenger area prohibitions. Open containers cannot be accessible to the driver or passengers. This includes banning them from the vehicle's glove compartment. If a vehicle has no trunk, then an open container can only be stored behind the last upright seat or in an area of the vehicle not normally occupied by the driver or the passengers.
• Have a ban that applies to all alcoholic beverages. This includes beer, wine, and distilled spirits.
• Apply to all vehicle occupants — driver and all passengers. There are exceptions for buses, limousines, taxis, and the living quarters of a house coach (motor home) or trailer.
• Cover any vehicle located on a public highway or right of way. This includes the shoulder of the road.
• Provide for primary enforcement of the open container law. This means that law enforcement can enforce the law upon probable cause for the violation. They don't need to wait for some other violation to occur first.

For example, the Arizona open container statute complies with TEA-21. It makes it a crime to consume spiritous liquor or possess an open container of spirituous liquor within the passenger compartment of a motor vehicle that is on any public highway or right of way of a public highway. (See Arizona Revised Statutes Section 4-251).

Public Place Open Container Laws

Public place open container laws criminalize the consumption of alcohol or possession of opened alcoholic beverages in public places. These are locations outside private places like homes, clubs, or restaurants. Like motor vehicle open container laws, public place laws may protect communities by reducing injuries from drunk driving (DUI and DWI). They may also reduce annoyances from disorderly conduct associated with public drinking.

Compared to the open container statute above, the Arizona law that prohibits drinking in public makes it a crime "for a person to consume spirituous liquor in a public place, thoroughfare or gathering."

Exactly what a public place is depends on the particular laws of each state or city or how local courts have interpreted those laws. Arizona, like many states, provides exceptions in the law. Exceptions can be where the person is on private property and has permission from the owner or at a special licensed event in a public area.

Depending on the particular laws and court rulings, public place open container violations may include drinking or possessing an open container of alcohol while:

• On a public road or sidewalk
• Inside a parked car (in a public area)
• On the front steps or in the common hallway of an apartment building
• On school property
• Outdoors in a residential neighborhood
• In a parking lot
• Inside a business open to the public that is not licensed for the consumption of alcohol

Public Place Open Container Exceptions

Certain states, like Indiana, do not have a statewide public drinking ban. States without such laws still allow county and municipal governments to enact ordinances that make public drinking illegal. If you're visiting an area where you do not know the law, do some research. Often, local hotel or restaurant staff in the area you are visiting will know. They can provide examples of where state or local law permits open containers of alcoholic beverages.

Cities and Entertainment Districts

Cities that allow public drinking in almost all areas include New Orleans, Las Vegas, and Indianapolis. Many cities now create entertainment districts that permit public drinking in confined areas or zones. This includes Kansas City, Missouri; Memphis, Tennessee; and Mobile, Alabama.

Typically, cities and entertainment districts that allow public drinking have restrictions that prohibit cans, open bottles, or glass containers in public. Often, they require a paper or plastic cup emblazoned with the name of the establishment where the drink was purchased or the entertainment district logo.

There are other exceptions, such as Colorado, which allows people (age 21 and older) to drink alcoholic beverages in any public place other than a public right of way if local ordinances or park regulations have permitted consumption.

Some local governments promote their permissive public drinking laws to increase tourism, encouraging visitors to support local businesses, bars, restaurants, and hotels. Examples include the New Orleans' French Quarter and the Las Vegas Strip. These laws can change frequently, so caution is advisable.

Restaurant Takeaway or Carryout

During the COVID-19 pandemic, many cities and states experimented with laws that permit the purchase of takeaway alcoholic beverages in carryout meals. For example, Ohio now allows a customer to carry out up to three alcoholic beverages with a meal from restaurants that have a liquor license. The alcoholic beverages must be in sealed and closed containers. The purchaser must also buy a meal. Ohio's open container laws ban drinking the beverage while traveling in your car or walking down the street.

Remember, cities that permit public drinking may still enforce other quality-of-life laws. Such laws include those that prohibit:

• Public urination
• Public nuisance (violation of noise restrictions)
• Disorderly conduct (unruly or destructive behavior)
• Driving under the influence (DUI)
• Minors in possession of alcohol
• Public intoxication

Open Container Laws: State Law Penalties

Penalties for open container violations vary among the states. Motor vehicle open container offenses tend to expose you to greater punishment. Public drinking open container infractions may only result in a citation and a fine.

For example, in Ohio, the penalty for consuming an alcoholic beverage while in a motor vehicle is a fourth-degree misdemeanor. If convicted, a person can face jail time of up to 30 days, a $250 fine, or both.

In many circumstances, including on a first offense, the court may order community service in lieu of jail time or fines. If the offender is under age 18, then the court may also issue a license suspension. Possession of an open container of alcohol (without consumption) in a motor vehicle or other prohibited location (including public places) is a minor misdemeanor. If convicted, a person may receive a fine of up to $150.

In California, open container offenses appear in the California Vehicle Code. They ban drinking or possessing an open container of an alcoholic beverage in motor vehicles. If convicted of such an infraction, the offender will face a fine of up to $250. California has expanded its open container laws to address marijuana use or possession. The law bans using marijuana in a vehicle or possessing an open container of marijuana. Marijuana open container violations only expose an offender to a fine of up to $100.

California penalties increase when the offender is under age 21. In those circumstances, driving with or possessing any alcoholic beverage in a vehicle becomes a misdemeanor offense. Upon conviction, the offender can face up to 6 months in jail, a $1,000 fine, or both.

Contesting Open Container Charges: Your Legal Rights

If you or a loved one faces open container charges, you may be able to raise a defense and fight the charge in court. There may be several possible defenses.

Contact a defense lawyer experienced in criminal law or DUI defense to learn how they may be able to help you or your family. Some of the legal factors that may help form a defense include:

• Whether there is sufficient evidence, given the particular facts of your case, to support a conviction under state law or municipal ordinance
• Whether you were the driver or the passenger in a vehicle and where police found the open container. Some state laws permit passengers to drink or possess an open container in a vehicle.
• Whether you possessed the open container or were drinking in a designated special district approved by state or local law
• Whether the investigating police officer gathered evidence in violation of your constitutional rights
• Whether your alleged conduct was properly charged as a criminal offense or civil infraction or violation
• What options exist for you to avoid a conviction or reduce the penalties of a conviction through a plea bargain or pre-trial diversion program.

Charged With a Drinking Law Violation? Talk to a Defense Attorney

If you have been arrested or issued a citation for an alcohol-related crime, seek legal advice before going to court. An offense may seem minor, but that doesn't mean it won't carry stiff penalties. A qualified criminal defense attorney can help review any prior criminal record you have. They can answer your questions about the best strategy for your case.