Texas has some of the strictest laws in the country when it comes to driving while intoxicated, but imagine being pulled over for a traffic stop and, without any alcohol in your system, still being charged with an alcohol-related offense: the open container law. In Texas, possession of alcoholic beverages in your car is not necessarily illegal, except when the alcohol is in an open container. Even if nothing has been consumed from the bottle, you can still be charged with possessing an open container if the seal is broken. With few exceptions, an open container in the car with any amount of alcohol in it can result in a misdemeanor charge.
The police officer can issue you a written citation and a notice to appear in court, and in that moment, it is up to you how the case turns out. You may think that a misdemeanor is insignificant, and the penalty associated with this specific offense also just as insignificant, but the real ramifications materialize outside the courtroom and the legal system. Generally, the open container leads to an investigation for DWI. You will have a criminal record, and that will follow you wherever you go (except in some cases, the conviction may be expunged). If your open container citation was accompanied by a DWI charge, then the open container citation acts as an enhancer and can increase your penalties if convicted of the charges.
It is in your best interests to contact an experienced and board-certified Houston DWI attorney Doug Murphy to prevent a criminal record from materializing. Experienced board certified DWI & criminal defense attorney Doug Murphy will be able to identify if there is a valid reason for the citation, and if not, the attorney will craft the best defense for you with the goal -- depending on individual cases -- to have the charge dismissed or reduced to an infraction.
Open Alcohol Container Offense Defined
The Texas open container law is codified in Texas Penal Code, Title 10, under the Possession of Alcoholic Beverage in Motor Vehicle statute, and open container is defined as:
“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. § 49.031(a)(1)
Simply having an open container in the vehicle, however, is not enough to commit the offense. According to § 49.031(b), a person must “knowingly possess 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.” According to the same section, in a single stop, each individual open alcohol container found in the vehicle represents a single and separate violation of the law, and a citation will be issued for each separate container.
Important Elements of the Open Alcohol Container Definition
The elements of the open alcohol container definition often prove important to the defense of any individual case. Your attorney will explain to you how these terms will or could impact your case.
Open container. As already defined, this term refers to any bottle, can, or another receptacle that (1) contains any amount of alcoholic beverage; (2) is open, has been opened, has a broken seal, or has contents partially removed.
Passenger area of a motor vehicle. This term refers to the area of a motor vehicle designed for seating of the driver and passengers of the vehicle; it excludes locked glove compartments or similarly locked storage compartments, the trunk of the vehicle, or the space behind the last upright seat of a vehicle with no trunk.
Public highway. This term refers to the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or another publicly-maintained way that at least part is open for motor vehicle travel.
Penalties for Open Container Offense
There are two types of penalties that can result from an open alcohol conviction: (1) the criminal penalties; and (2) the collateral consequences. The former is accompanied by a permanent criminal record while the latter results from that criminal record.
Penalties Set by Law
Each count of an open container containing alcohol in a vehicle is a Class C misdemeanor. In Texas, Class C misdemeanors are punishable by a fine up to $500, and as a Class C misdemeanor, the conviction may also -- under certain circumstances -- be expunged.
The offense, however, can act as an enhancer if it is accompanied by a DWI charge. If convicted of the DWI, the open alcohol container conviction increases the penalties for the DWI conviction. The open alcohol container offense is upgraded to a Class B misdemeanor with a minimum of 6 days to a maximum of 180 days in jail, and the fee can be increased up to $2,000.
Penalties Set by Society
The problem with penalties imposed by the state is simple: the punishment doesn't stop when the penalties are fulfilled. For those of you who care about your clean record and reputation, you can't let a “minor” misdemeanor stand in your way. In fact, for many of you who are worried about your academic or career aspirations, your social status, or even your auto insurance coverage, a seemingly small charge of open alcohol container can transform into a big roadblock to the fulfillment of those aspirations or to managing those concerns. A criminal record can affect the following:
- College/University Acceptance. For those of you applying for graduate programs, you may have to disclose your criminal history, and your acceptance into the program can be detrimentally impacted if you have a criminal record.
- College Financial Aid. For some of you seeking aid for graduate school, you could be disqualified from some of the federal and state programs if you have a criminal record.
- Employment applications. Many applications ask specifically if you have been convicted of a crime, and you must disclose, but disclosing it becomes a problem for you: (1) the employer may deem you a liability risk to the company; and/or (2) the criminal record becomes an issue of reliability and credibility for you as an employee.
- Professional license or Security Clearance. If you have or will require a license (e.g., real estate, nurse) or security clearance for your professional career, then your career could be in jeopardy. Depending on the specific circumstances, your license could be suspended, revoked, not renewed, or not granted. The same is true for security clearances.
- Auto insurance. Your auto insurance premiums could increase with an open alcohol container conviction because you could be deemed a high risk by your insurance provider.
Exceptions to the Open Container Offense
Section 49.031(c) provides some relief to those cited for an open alcohol container offense but who may qualify for an exception to the rule. It is not a criminal offense to possess an open container with alcohol in the passenger area of a motor vehicle in two specific circumstances:
- If the open container that is the subject of your citation was found in a vehicle that was designed, maintained, or used primarily as a service to transport people in return for compensation, then you did not commit a crime so long as you are the person/customer being transported (and not the driver). Examples of such vehicles include buses, taxis, and limousines.
- If the open container that is the subject of your citation was found in the living quarters (as opposed to passenger area of a vehicle) of a self-contained camper, motor coach, motorhome, or recreational vehicle, then you did not commit a crime.
If your open container case does not qualify under one of these two exceptions, you stand a good chance of a conviction but for the diligent work of an experienced, resourceful criminal defense attorney who will fight for a dismissal or case reduction so that your future is not in peril due to a past mistake.
Open Alcohol Container Defenses
There are many defenses that can prove effective against an open alcohol container citation, and much of it will come down to the details or facts of the case. The possible defenses include:
- Absence of Reasonable Suspicion. If there is insufficient cause for a traffic stop, then you have a defense. A police officer cannot stop you without specific, articulable facts that create a reasonable suspicion that you were engaged in criminal activity while driving or sitting in your stopped or parked vehicle.
- Absence of Legal Cause. If there was sufficient legal justification for a traffic stop, there must also be adequate legal cause to conduct a search of the vehicle. If the container was not observable from outside the vehicle, the search of the vehicle's interior may have been illegal if there no legal cause existed.
- Vehicles for Hire. Vehicles for hire is an exception to the rule and is a complete defense to your case. If you are a passenger in a cab, bus or limousine, you are not guilty of the offense.
- Vehicles for Camping/Recreational Living. Camping vehicles, including motorhomes or campers, are an exception to the rules and are a complete defense to your case. It is not illegal for passengers to drink alcohol inside these types of vehicles.
- Location of the Container. It is a legal defense to a charge of having an open container that the alcoholic can or bottle was in the trunk, a locked container, or an area of the vehicle not occupied by passengers (i.e. the bed of a pickup truck).
If your attorney is experienced and resourceful, then he will also look outside the system for ways to dismiss or reduce the charge to an infraction so a permanent criminal record is not created.
At Doug Murphy Law Firm, we devote our resources and capabilities to DWI cases. We have decades of experience working with the prosecutors and court system with proven, favorable results. Attorney Doug Murphy is a board certified DWI lawyer who not only fights on behalf of his clients but teaches other attorneys how to do the same. Contact Houston DWI Lawyer Doug Murphy today to discuss the circumstances of your case.