It is illegal in Texas to possess an open container of alcohol in any motorized vehicle, as of September 2001 by House Bill 5. The 77th Texas Legislature passed the House Bill 5, which makes it a Class C misdemeanor for anyone who possesses an open container of alcohol in the passenger area of a motorized vehicle on a public highway, or if at the right-of-way adjacent to a public highway. If you, or a loved one, is arrested for having an "open container" in your vehicle, or have been charged with a DWI charge and an "open container" has been alleged, it is very important to consult with an experienced Texas DWI Defense Attorney to help protect your rights so you can be properly represented with your DWI case.
What is classified as an "Open Container"?
Under Texas Law, an "open container" is defined under Section 49.031 of the Texas Penal Code, and states, in relevant part, the following:
Texas Penal Code: Section 49.031 - POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE
(a) In this section:
(1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
(2) "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:
(A) a glove compartment or similar storage container that is locked;
(B) the trunk of a vehicle; or
(C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.
(3) "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.
(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.
(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:
(1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or
(2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.
(d) An offense under this section is a Class C misdemeanor.
(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.
What is considered the "passenger area of a motorized vehicle"?
The "passenger area" is the area of a motorized vehicle designed for the operator and the passengers to sit. It does not include the trunk of a vehicle, the area behind the last upright seat of a vehicle that doesn’t have a trunk or even a locked glove compartment or a similar storage container that is locked.
What constitutes a "public highway"?
A "public highway" includes any public highway, interstate, street, road, street or any other publicly-maintained way if any part of it is opened for public use for the purpose of a motorized vehicle can travel.
For a violation to occur, does the motorized vehicle have to be moving?
No, a motorized vehicle does not have to be moving. Under the law, a person commits an open container offense when possessing an open container in the passenger area of a motorized vehicle regardless of whether the vehicle is being operated, or if it is stopped or even parked. Your car does not have to be moving in order for you to break the state’s open container laws. In fact, even if the vehicle is stopped, it is illegal for you to have an open container of alcohol inside it - the only exceptions being buses, taxis, limos and motor homes/RVs. It is also important to note that the open container laws apply to any type of road or highway For those who are passengers in a taxi, a bus or a limousine, there is an exception to the law. Even for other people who are in the living quarters of a motorized house coach or in a motorized house trailer, which includes a self-contained camper, motor home, or even a recreational vehicle there is also an exception to the law.
Why were the open container and DWI laws changed?
Before the 77th Legislature, the State of Texas was not compliant with the federal open container and the DWI repeat offender laws. As a result, it took a risk of losing federal highway construction funds apportioned to the state of Texas. Now, the changes in the law brought Texas into compliance with the federal open container laws and the federal laws for repeat DWI offenders.
The Department of Public Safety has observed that in the majority of alcohol-related crashes, an open container was present. The law is intended to help curb the problem of Driving While Intoxicated, especially in trying to limit the amount of accidents that have occurred in the past.
The penalties for breaking the open container laws depend on the circumstances surrounding the charge. For example, if a police officer spotted you with an open container, and no other incident was involved, you would most likely be given a citation and fined $500. However, if you are arrested for a DWI charge, and it alleged that an open container is found in your vehicle, you may be subject to much harsher penalties - including increased jail time - than a person who is charged with only a DWI charge.
DWi charges with an allegation of having an "open container"
(a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
You can contact The Law Offices of Carl David Ceder at anytime for assistance at 214.702.CARL(2275) or at 469.2000.DWI(394). You can also e-mail Carl directly, at Carl@CederLaw.com; or to the office for general inquiries at Info@DFWDefenders.com. Phones should be answered 24 hours a day/7 days a week for immediate and personal assistance. E-mail messages will be responded to with 24-48 hours, depending on whether Carl is in trial.