Can You Drive With an Open Container of Alcohol in Your Car?

Virginia’s open container laws aren't as clear-cut as other states'

By Judy Malmon, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on September 15, 2023

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Drinking while driving is clearly illegal. Drinking while in the comfort and safety of your home is generally legal, at least if you’re of legal drinking age. What about a situation between these two clear examples: Can you have an open container of alcohol in your car while driving?

As with many legal answers, it depends on the state. In compliance with federal laws banning open containers of alcohol, most states, from New York to Texas, have enacted laws that prohibit both:

  • The possession of open containers of alcohol in a moving car; and
  • The consumption of alcohol by anyone in the car, including passengers.

However, a few states do allow open containers and even let passengers consume alcohol, including Connecticut, Mississippi, and Missouri.

Virginia is a state where the open container law isn’t as clear-cut. It theoretically allows an open container of alcohol in a moving vehicle. However, the presence of an open container of alcohol also creates a “rebuttable presumption” that the driver was drinking. This article will explain the concept of a rebuttable presumption and how Virginia’s open container law works.

What is an Open Container?

First, what exactly is an open container of alcohol?

It means anything containing (or that did contain) an alcoholic beverage other than the original, sealed manufacturer’s container. It could be a can, bottle, flask, decanter, or other receptacle.

What is a Passenger Area?

Many open container laws refer to the passenger area of a car where the open container is present. Under Virginia law, the passenger area of the motor vehicle includes the entire interior of the car except for:

  • The trunk;
  • The cargo area behind the last upright seats in a van or SUV; or
  • A locked glove compartment.

Drinking While Driving is Illegal

It’s worth stressing that under Virginia’s DUI law, as in all states, it’s absolutely illegal to consume alcoholic beverages while driving or to be intoxicated while driving. Doing so constitutes a Class 4 misdemeanor, punishable by a first-time fine of $250.

A criminal conviction will remain on your record and may affect potential penalties for subsequent violations.

Virginia’s Rebuttable Presumption of Drunk Driving

The second part of Virginia’s DUI law is where things can get confusing since it introduces the legal concept of a “rebuttable presumption.”

A rebuttable presumption is simply something the court can assume to be true until the defendant presents evidence that disproves the assumption.

The Virginia law gives rise to a rebuttable presumption that a driver has been drinking while driving if:

  1. There’s an open container within the passenger area of the vehicle;
  2. The beverage has been partially consumed; and
  3. There is anything about the driver (such as the smell of alcohol on their breath or their appearance) that is associated with drinking an alcoholic beverage.

For the presumption to exist, it’s not necessary that you were drinking in the car; it’s not necessary that you have a BAC (blood alcohol concentration) above the legal limit of 0.08; it’s not even necessary that the open alcoholic beverage is near you while driving.

The presumption is simply that you were drinking, and with the three factors noted above, it becomes your burden to prove otherwise.

So, it’s technically not a violation of the DUI statute for passengers to have an open container and drink, but it presents a lot of risk for the driver.

Local Laws That Further Complicate Things

There are also laws in Virginia making it illegal to consume alcohol in any public place, including on “any highway, street, lane, or sidewalk adjoining any highway, street, or lane.”

Under this rule, drinking in your car while parked or traveling on any roadway would constitute public drinking, also a Class 4 misdemeanor, whether you’re the driver or a passenger.

Furthermore, some municipalities in Virginia have more restrictive rules than the state laws, explicitly outlawing open beverage containers in all public highways or places. Most of these rules carry a similar penalty as violating the state law.

In the end, the allowance for having an open container in a car in Virginia is quite a slender one: If you’re on a public road, and the driver has something that suggests they might have been drinking, you could be subject to criminal charges.

If you must carry an already-open bottle of alcohol in Virginia, make sure it’s in the trunk or behind the last row of seats.

If you find yourself facing DUI charges for any alcohol-related driving offense, get help from an attorney with experience in Virginia DUI law. If you’d like additional information about this area of the law, including the grounds for law enforcement to administer field sobriety tests or a DUI arrest, see our DUI/DWI law overview.

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