Pass the … DUI?

Virginia’s open container law isn’t a safeguard if you have alcohol in a vehicle

By Judy Malmon

Virginia has a law on the books that theoretically allows an open container of alcohol in a moving vehicle. We qualify with “theoretically” because it’s not that clear-cut, and in fact may get you a DUI charge.
Virginia’s law on drinking and driving is clear: it’s illegal to do so while driving and 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. The second part of the statute is where things can get confusing, giving rise to a rebuttable presumption that the 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 smell of alcohol on their breath, their appearance) that is associated with drinking an alcoholic beverage.
An “open container” means absolutely anything containing (or that did contain) an alcoholic beverage other than the original manufacturer’s sealed container. “Passenger area” includes the entire interior of the car except for the trunk, the cargo area behind the last row of seats in a van or SUV, or a locked glove compartment.
It’s not necessary that you were drinking in the car; it’s not necessary that you have a BAC (blood alcohol concentration) of .08; it’s not even necessary that the drink be near you while driving. The presumption is that you were drinking, and with the noted factors present, it becomes your burden to prove otherwise.
So, technically, it’s not a violation of this statute for passengers to have an open container and drink, but it presents a lot of risk for the driver. There are likewise 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 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, make sure it’s in the trunk or behind the last row of seats. If you should find yourself facing charges for any DUI or alcohol-related driving charge, get help from an attorney with experience in this area

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