Possession of Alcoholic Beverage in Motor Vehicle graphic with Texas flag

Possession of Alcoholic Beverage in Motor Vehicle

The Texas “Open Container” law is codified in the statute as Possession of Alcoholic Beverage in Motor Vehicle. This law makes it illegal for any person to possess an open container in a passenger area of a motor vehicle on a public highway. Whether or not the vehicle was operated, stopped, or parked does not matter when it comes to this offense.

Have you been charged with Possession of Alcoholic Beverage in Motor Vehicle? Call criminal lawyer Paul Saputo at (888) 239-9305 to discuss legal representation.

What is the current Texas law about Open Containers?

The current Texas law is as follows:1

(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.

What is an open container?

In Texas, an open container can mean any receptacle containing any amount of alcohol, that is open, was opened before, has a broken seal or has had a portion of its contents removed. If it contains alcohol and isn’t sealed, Texas law defines it as an open container.2 Whether or not a seal is broken is a factual question that a jury would determine in the event that you take your case to trial.

Can I be charged if the container was in the trunk, glovebox or backseat?

The statute defines the passenger area of a vehicle as the area “designed for the seating of the operator and passengers of the vehicle.”3 However, the statute clearly excludes three areas from the definition:

  • A locked glove compartment
  • A trunk of a vehicle
  • Or the area behind the last upright seat of the vehicle if it does not have a trunk

Can I be arrested for an Open Container violation?

Texas law says that you can only be issued a citation for an open container violation.4 However, if there is another violation that the police are planning on charging you with, then you can be arrested for that violation.

How can I be charged with Possession of Alcoholic Beverage in Motor Vehicle?

You can be charged with Possession of Alcoholic Beverage in Motor Vehicle if a police officer believes that all of the elements of the law as described above have been met. The police officer does not need a warrant to take you into custody.

There are two exceptions to the open container law: (1) It is an exception to the statute if the defendant was a passenger in a motor vehicle primarily used for transportation for hire. Examples of such would include, a bus, taxicab, or limousine.5 (2) It is also an exception if the passenger was in the living quarters of a motorized house coach, house trailer, or recreational vehicle.6

What is the punishment for Possession of Alcoholic Beverage in Motor Vehicle?

Possession of Alcoholic Beverage in Motor Vehicle is a Class C Misdemeanor, punishable by a fine of up to $500 under state law.7

What is the DWI enhancement for an Open Container?

Under Texas law, the minimum penalty for a DWI conviction is increased to 6 days confinement if the state proves you had an open container at the time you were driving.8

Legal References:

1 Texas Penal Code §49.031

2 Texas Penal Code §49.031(a)(1)

3 Texas Penal Code §49.031(a)(2)

4 Texas Penal Code §49.031(e)

5 Texas Penal Code §49.031(c)(1)

6 Texas Penal Code §49.031(c)(2)

7 Texas Penal Code §49.031(d)

8 Texas Penal Code §49.04(c)

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