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Can a Passenger Have an Open Container of Alcohol In a Vehicle?

Updated: Feb 13, 2023 @ 11:46 pm

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If a police officer pulls a driver over for a traffic violation and spots an open container of beer next to said driver, the odds are pretty good the officer will also issue a citation for an open container violation. Texas law is pretty clear on this point.

A person commits a Class C misdemeanor–essentially the equivalent of a traffic ticket–if they “knowingly possess” an open alcohol container within the passenger area of a vehicle while it is “located on a public highway.”

But what if there was a passenger sitting next to the driver, and that passenger tells the officer it was their beer. Can the passenger get a ticket, even though they were not driving? And could the driver still be cited for an open container violation?

Three Elements of Open Container Violations in Texas

To answer these questions, it is crucial to review the wording of the Texas open container law itself. There are basically three elements that need to be established:

  1. There was an open container of alcohol.
  2. The open container was in the passenger area of the motor vehicle.
  3. The motor vehicle is on a public highway.

The First Element

The first element is pretty simple.

An open container of alcohol is just what it sounds like. It is a bottle, can, or other receptacles that contain alcohol and is open or has had its seal broken. Note the law does not require an empty container, just an open one. So if you are caught with a just-opened can of beer that is still full, that still qualifies as an “open container.”

Element #2

The second element is probably the most commonly misunderstood.

The “passenger area” of a motor vehicle includes the entire seating area. This includes seating of both the driver and any passengers. So an open container in the front passenger seat is still a problem, as would an open container in the back seat.

However, the passenger area excludes the trunk. So if there was, say, a half-open bottle of wine in the trunk, that would not be a problem. But if a passenger is holding that same open bottle with them upfront, then they could be cited.

The Final Element

The third element is also subject to some degree of confusion.

The phrase “public highway” does not mean the vehicle has to be going down an interstate. It just means the vehicle has to be on a public road.

Indeed, it does not even have to be moving. In other words, if a police officer spots someone sitting in the passenger seat of a car that is parked on the side of the street with an open container, that is still a violation. And the officer could, in theory, cite both the driver and the passenger, even if the passenger claims the open container belonged to them.

Facing Charges over an Open Container Violation?

Contact Attorney Tad A. Nelson Today!

If you would like further information about the law in this area, or if you have been cited and require legal representation from an experienced Houston DWI defense attorney for open container violations, contact the Law Offices of Tad Nelson & Associates today.

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

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