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Is Drinking & Driving Illegal Even If I Am Below the Limit?

Updated: Feb 13, 2023 @ 12:40 am

Less than 1 minute Reading Time: Minutes

Texas DWI laws and the legal limit of 0.08% BAC

You are probably familiar with the legal limit of 0.08 percent in Texas. This refers to a person’s blood-alcohol content (BAC). If a police officer detains you and administers a blood or breath test, a BAC of 0.08 percent or greater is sufficient to prove you were legally intoxicated under Texas DWI laws.

Having one drink before you get into your car may not be enough to raise your BAC to 0.08 percent.

But what if you are having that first drink while driving?

Is that technically a crime?

Open container violation distinct from DWI

To put it bluntly, yes. It may not be DWI. But it is a clear violation of Texas open container laws. More precisely, it is a Class C misdemeanor to “knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway.”

So if you are actually drinking a beer while driving–i.e., you have an open container in the passenger area of your car–you are breaking the law.

Note that an open container violation is distinct from the question of whether or not you are drunk driving. A police officer does not need any proof of intoxication to cite you under the open container laws.

Indeed, it is not even necessary to show you were personally consuming the alcohol in the opened container. What matters is the presence of the open container in the vehicle while you are operating it–even if your car is parked on the side of the road.


Now, there are some exceptions to this. If you are in the living quarters of a motorhome or RV while drinking a beer, that is not an open container violation. Nor does the law cover a situation where you are riding and drinking in, say, a taxi or limo. But if you are driving your own vehicle for any reason, you cannot have (or drink) any open container of liquor.

You Can Still Be Charged with DWI If You “Show the Signs”

As noted above, an open-container violation is a Class C misdemeanor, essentially the equivalent of a traffic ticket. This means you will be cited, not arrested, and the maximum penalty you face is a $500 fine with no jail time.

But keep in mind, if a police officer stops you and sees you drinking in your car, they are likely to suspect DWI. And even if this was just your first drink, an officer can arrest you for drunk driving based on a number of signs short of administering a blood or breath test.

For instance, the officer may conclude you are intoxicated based on your speech, appearance, or coordination. Even if your BAC was below the legal limit, such signs can still be used to prosecute you for DWI.

If you are cited for an open container violation, or something more serious, and need qualified legal representation from a DWI defense attorney, contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today.

Houston DWI Lawyer Tad A Nelson is Board Certified in Criminal Law by the TBLS.

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