Having an alcoholic beverage in your car that has been opened even if the beverage was never ingested is considered an open container under VC 23221-232291 .
In this post, I will explain California’s open container laws and how you can defend yourself if you have been arrested.
Lets get started…
- Overview Of Open Container Laws
- What Is The Law For Minors And Open Containers?
- Are Police Allowed To Search My Vehicle?
- Defenses to Open Container Laws
- Possible Additional Charges
Overview Of Open Container Laws
California has several laws which make it illegal to have an open alcoholic container in public2.
This includes any bottle, can, or box whose seal has been broken.
These laws include:
- Vehicle Code 2321 VC – Drinking in a a car.
- Vehicle Ciode 23221(a) VC – Possessing an open container in a car.
- Vehicle Code 23224 VC – Underage possession of an open container in a car by a person under 21 years of age.
- Vehicle Code 23225 Vc – Storing open containers in a trunk.
The open container laws also include ingesting any marijuana or any marijuana product being driven on a highway3.
Can a Keg of Beer Be Considered an Open Container in a Car?
If the keg was in the flatbed of a pickup or the trunk, then it is not considered unlawful since it is in an area not normally occupied by passengers.
But if there are passengers in the flatbed with the keg where the flow of beer has been activated, then the driver and any passengers drinking from it can be charged.
What Is The Law For Minors And Open Containers?
As a motorist under the age of 21, you are prohibited from:
- Drinking alcohol in a motor vehicle.
- Driving a car knowing that it has alcoholic beverages in it, open or not.
- Being a passenger in a car and possessing an alcoholic beverage, open or not4.
Are There Exceptions?
- There was an adult in the motor vehicle with you
- It is part of your job to transport alcoholic beverages either as a driver or passenger
- Your parent was giving instructions about the alcoholic beverage (“hold it until it can be disposed of”)
Can The Driver Be Charged With Open Container If a Passenger Has an Open Beer?
Yes, but only if the driver was aware that the passenger had an open container.
This is determined by what the arresting officer observed.
Are Police Allowed To Search My Vehicle?
Police must have probable cause to stop your car and may not do so randomly.
Even at a DUI checkpoint, there must be certain guidelines in place before a motorist can be stopped and questioned.
What Are The Standards For Police?
The standard that police must follow is that there be specific and articulable facts to believe that you were or are engaged in an unlawful act.
This means stopping you for a traffic violation, equipment violation or for erratic driving.
What If I Am Asleep In My Car?
You can also be detained or questioned for sleeping in your car that is stopped on the shoulder or in a parking lot late at night after businesses are closed.
Police cannot search your car for any reason or if they stop you for a traffic violation absent facts that would lead them to reasonably believe you are hiding contraband, firearms or some other illegal items.
Police May Search Your Car If:
- You are placed under arrest but they may only search the immediate vicinity such as being able to reach inside
- They find contraband in plain view (drugs, a firearm, open container)
- Conduct an inventory search of your car if it was impounded
- They have probable cause to believe your car has contraband, such as a witness observed you putting weapons in your trunk or bags of marijuana, or that they would find evidence relating to a crime for which the driver or passenger was arrested (getaway car for penal code 211 pc – bank robbery)
- You gave consent
Otherwise, police must secure a search warrant, which must also be based on probable cause.
Defenses to Open Container Laws
Defenses to the open container laws are as follows:
The Alcohol Was Inaccessible To You
If the container was not accessible, then you have a defense.
It must have been in the trunk, a bed of a pickup truck or in a locked container in the back seat.
Hiding it in your glove compartment, if the police had probable cause to search your car, does not make it inaccessible.
In other words, it must be in an area not normally occupied by passengers.
You Lacked Possession
If there are multiple passengers in the passenger vehicle and no one is holding the open container, then the police or prosecutor may be unable to prove who had possession.
You Were A Passenger In A Specific Type Of Vehicle
You are not prohibited from possessing an open container of alcohol if you are a passenger in a:
- “Housecar” such as an RV
What Is A House Car?
California law defines this as any vehicle that has been designed or permanently altered for human habitation, including a vehicle with a camper that has been permanently attached.
This can include an old school bus with a shower, toilet and kitchen equipment.
An RV is a housecar for purposes of California law so that you can have open containers of alcohol and not be violating the law, so long as the driver is not drinking.
Is An Uber Or Lyft Treated As A Taxi?
An Uber or Lyft may or may not qualify since it is a vehicle for hire in some aspects though it is also a passenger vehicle.
Of course, prosecutors will argue that it does not qualify as a taxi since ride-sharing drivers do not possess commercial driver’s licenses.
It is best that if you are an Uber or Lyft driver to not allow passengers to drink in your vehicle.
If you are a minor, you can be charged with a misdemeanor for having an open container.
Penalties For Minors With Open Containers Include:
- Community service
- And/or one-year revocation of driver’s license
- Impoundment of vehicle
Penalties For Non-Minors Include:
An infraction which is not a criminal offense and you face a fine of up to $250 and no jail time. It also does not go on your public record.
The DMV will put one point on your driving record, however. An accumulation of 4 points in one year or 6 points in two years will result in revocation of your license.
Possible Additional Charges
Driving Under The Influence
Police will immediately suspect you of violating vehicle code 23152(a) – California’s DUI law, if you were observed with an open container in hand or if you have an open container in plain view and you were validly stopped, such as for a traffic offense.
If you are charged and convicted of DUI and have an open container, this is an aggravating factor.
This can lead to an increased fine and/or additional time in jail.
Drunk In Public
It is unlawful to appear in public while intoxicated.
This includes being drunk in a motor vehicle. If your car was validly stopped and police have cause to believe you as a passenger are intoxicated, then you may be arrested and charged under Penal Code Section 647(f).
Facts that can lead an officer to this conclusion include your demeanor (slurred speech, the odor of alcohol, confusion) or observing an open container of alcohol in your hand.
This is a misdemeanor offense with penalties of up to 6 months in county jail, a fine up to $1000 and informal probation for 3 years5.
Next Steps If You Need Help
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
Request A Free Consultation
- California Vehicle Code 23221 VC, See Also California Vehicle Code 2322 VC: California Vehicle Code 23223 VC: California Vehicle Code 23224 VC: California Vehicle Code 23225 VC: California Vehicle Code 23226 VC: California Vehicle Code 23229 VC: California Vehicle Code 23229.1 VC [↩]
- See same as above [↩]
- California Vehicle Code 23221 VC [↩]
- California Vehicle Code 23224 VC [↩]
- California Penal Code 647(f) PC. [↩]