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How Having an “Open Container” Can Affect a Texas DWI Charge

Updated: Feb 10, 2023 @ 11:33 pm

Less than 1 minute Reading Time: Minutes

Drunk driving is not just about the alcohol content in your system. Texas defines a separate criminal offense for driving while intoxicated with an open container of alcohol in your vehicle. As with a first-time DWI offense, an open container violation is a Class B misdemeanor.

However, the minimum jail term is double for DWI with an open container: six days versus 72 hours for a normal DWI.

When Can You Be Charged With an Open Container Violation as a Passenger?

In addition to DWI, Section 49.031 of the Texas Penal Code makes it a Class C misdemeanor to be in possession of an open container of alcohol while a driver or passenger in a motor vehicle. To secure a conviction, prosecutors must show beyond a reasonable doubt that the defendant had “an open container of alcohol in the person’s immediate possession.”

An open container may include anything that holds liquor, including a can or bottle, and which is “open” or has a “broken seal,” or there is any evidence that the contents have been “partially removed.”

It is not always illegal to have an open container of alcohol in your car. The Penal Code only considers it an offense when the following conditions are met:

  • The open container is located in a “passenger area”; and
  • The vehicle itself is “located on a public highway.”

Each of these conditions requires some explanation. The “passenger area” of a vehicle only refers to that portion of a vehicle’s interior where the driver and passengers sit. It does not include the glove compartment or any other locked storage container, including the trunk. If the vehicle does not have a trunk, the “area behind the last upright seat of the vehicle” may be treated as if it were the trunk.

As for “location,” prosecutors need only show that your vehicle was on a public road when you were found in possession of an open container. In other words, if you are parked on the side of the road, and the police find you in the driver’s seat with an open beer bottle on the seat next to you, that is sufficient to convict you of DWI with an open container. The fact you were not actually driving your car at the time of the arrest is irrelevant.

It is also not a crime to have an open container of alcohol if you are the passenger in the backseat of a limo, taxicab, or bus. You can also possess an open container in the “living quarters” of a trailer, camper, recreational vehicle, or motor home.

If You Need Help…

Contact Attorney Tad Nelson Today

Houston DWI Attorney Tad NelsonA police officer will typically not arrest you for Class C misdemeanor possession of an open container. Instead, you will receive a citation and a summons to appear in court.

A DWI with open container is a more serious matter, for which you will be placed under arrest. In either case, you have the right to seek representation from a qualified Houston DWI attorney to defend your rights in court.

Contact the Law Offices of Tad Nelson & Associates today if you have been charged with any kind of drunk driving or open container violation and need to speak with an attorney right away.

The Law Office of Tad Nelson & Associates

Houston • Clear Lake • Galveston • League City

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

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