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Is it an Open Container Violation If I’m Not Actually Driving?

Updated: Feb 11, 2023 @ 11:07 pm

Less than 1 minute Reading Time: Minutes

You may not realize this, but you can be tried and convicted of a DWI with an open container violation even if you are not actually driving a car when the police apprehend you. This is a common misunderstanding about DWI law in general. The truth is that the law does not merely criminalize “driving” while intoxicated. Rather, it is illegal to “operate” a motor vehicle while under the influence of alcohol.

Operating a motor vehicle can simply mean you are parked but still behind the wheel with the keys in the ignition. As long as you retain control over the vehicle, police can nab you for DWI. And if there’s a half-opened container of alcohol in the car, you can be charged with an open container violation even if you never took a sip while behind the wheel.

Austin Woman Charged with DWI

She Passed Out Behind the Wheel with Child, Open Container

Indeed, it is not unheard of for Texas law enforcement to arrest drivers who are asleep or passed out behind the wheel of a parked car for DWI. Consider this recent story from Austin. On November 8, Austin police received a call that a “woman passed out in her car at a gas station with a young child in the backseat,” according to KVUE News.

When officers arrived at the scene, they confirmed the woman was asleep, the car was still running, and there was in fact a three-year-old child asleep in the back seat.

There was also an “open container of alcohol” in the center console next to the driver’s seat.

The officer woke the woman. She then voluntarily admitted she “had consumed two 16-ounce alcoholic beverages over a two-hour time period while at a get-together with friends.” The officers said the woman’s speech was slurred and she appeared very disoriented.“

Police ultimately arrested the woman for DWI. She has at least two prior DWI convictions, according to KVUE. As of November 9, she was still be held in jail on a $50,000 bond while awaiting trial.

When Should You Call a Houston DWI Lawyer?

Fighting Open Container Violations in Houston

Houston Open Container Violated DWI Defense LawyerThe above story offers many lessons. First and foremost, you should never get behind the wheel if you have been drinking, period. Pulling off into a gas station or to the side of the road and falling asleep will not save you from a DWI charge. If you are behind the wheel while intoxicated, you are committing a crime.

Second, having a child in the car with you will only make things worse. Under Texas law, if there is anyone under the age of 15 in a car with you at the time of a DWI, you are facing an automatic state jail felony charge.

Third, you should never volunteer information to the police. They’re not going to go easy on you if you cooperate, especially when they already found you behind the wheel of a car with both a child and an open container of liquor present. Your best bet is to say nothing and contact a qualified Houston DWI defense attorney.

If you need advice or assistance in dealing with any type of DWI charge in Houston or elsewhere in Texas, contact the Law Offices of Tad Nelson & Associates today by calling 281-280-0100.

Non-Moving Open Container Violations

The Law Offices of Tad Nelson & Associates

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

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