Before you choose to take “one for the road” literally, you might want to do your research on the open container law in Texas. You know that drinking alcohol is not illegal and driving drunk is, but what about walking around with an open drink? Can you drink alcohol in a public park in Texas? Can passengers drink alcohol in a car in Texas?
When people can’t answer these questions they find themselves breaking laws without even meaning to. In this case, what you don’t know can hurt you — and you end up facing expensive criminal charges that create barriers to obtaining an education, work, and more.
Winning DWI lawyer Mark Thiessen knows everything there is to know about DWI in Texas, and is here to tell you everything you need to know about the open container law in Texas. If you or a loved one have been arrested under suspicion of DWI or have gotten a ticket for an open container, call Thiessen Law Firm today at (713) 864-9000 to begin defending your freedom.
Are open containers legal in Texas?
The open container law in Texas’ history had its most significant (and recent) change in 2001 when the open container law as we know it was passed. Sec. 49.031 of the Texas Penal Code contains what we know as the “Possession of Alcoholic Beverage in Motor Vehicle” statute, which states that an individual has committed an offense if they:
- Knowingly possess an open container in the 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.
So any open container in the “passenger area” on a “public highway” counts as an illegal open container, regardless of whether the car is stopped or moving. Let’s further define those terms.
What counts as an open container?
To understand Texas open container laws, it’s important to know what an “open container” actually is. According to the law (§ 49.031(a)(1)) an “open container” means an:
- Open bottle of alcohol
- Open can of an alcoholic beverage
- Any 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.
For example, a half-consumed bottle of vodka or an open can of beer both count as an open container of alcohol. A fully-sealed bottle of any type of booze, on the other hand, would not.
For an open container of alcohol to turn into a crime, it must meet several other conditions. It must be in the “passenger area of the motor vehicle,” i.e. where people can sit in the car. In other words, the open container must be visible and reasonably within reach from the driver’s seat (in the cupholder, in the passenger seat, rolling around in the back seat, etc.). An open container is not technically in the “passenger area” if it is:
- In the glove compartment or another locked storage area within the vehicle
- In the trunk of your vehicle
- In the area behind your upright seat (if your vehicle doesn’t have a trunk)
You do NOT have to be drunk, nor even drinking from an open container, to be charged for an open container violation. Additionally, you can be charged separately for each open container found in your vehicle.
Continue reading: Can you drink and drive in Texas?
Can passengers drink alcohol in a car in Texas?
Contrary to some misconceptions, passengers are not exempt from the open container law in Texas. If your friend is giving you a hard time about bringing a roadie along as a rider, he isn’t doing it just to be mean. That open container is technically in the “passenger area” mentioned above, and both passengers in the vehicle and the driver of the vehicle can be charged with possession of an open container, even if they are 100% sober.
While it may seem reasonable for passengers to enjoy a drink during a road trip or while being driven, the law explicitly prohibits open containers for everyone inside a moving vehicle.
What happens if you get pulled over with an open container in Texas?
If you get pulled over with an open container in your car, at minimum you will be issued a citation. That citation, which can itself result in significant fines and penalties, is likely not the only thing that will result from a traffic stop with an open container.
If you are found with an open container in your car you will certainly be suspected, likely be tested, and possibly be arrested for a DWI! Because an open container is considered probable cause for search, you can expect that anything that can go wrong during the traffic stop, will go wrong — and you better have a good lawyer on speed dial.
Make your one phone call to a trial lawyer. What is a trial lawyer? A trial lawyer is an attorney who won’t be afraid to take your case in front of a judge and jury and fight for your rights. As is the case with most DWI cases, a conviction can be life-ruining even if you accept reduced charges. The only way to keep your name and your record clean is to hire an attorney who can take your DWI case to court and win it.
The open container law in Texas penalties
In the state of Texas, possession of an open container is a Class C Misdemeanor — in other words, it’s a traffic ticket. As long as your blood alcohol concentration is below .08 and you aren’t committing any other crimes in the process, you/your buddies will be issued a ticket and a fine.
But remember: while a Class C Misdemeanor may not seem so bad, misdemeanors have consequences beyond fines. A misdemeanor for violating the Texas open container law could affect college admissions and financial aid for students, employment, your ability to secure professional licensure, insurance costs, and more.
How much is an open container ticket in Texas?
The open container fine in Texas is no more than $500. However, you can receive a fine for each open container found in your vehicle, so if you have a stash of half-empty bottles rolling around in your front seat, you may receive multiple $500 fines.
Open container law in Texas and jail time
If you receive an open container ticket by itself, you will not be required to spend time in jail. However, if you are on parole or probation, an open container violation could be more severe.
Is an open container violation the same as a DWI?
No. However, if coupled with related charges (such as a DWI), open container charges can become “enhanced” to a Class B Misdemeanor, which carries up to a $2,000 fine and 6–180 days in jail. Additionally, open container charges can become much more severe if you are found in DWI probation violation or if you have suffered a DWI license suspension in Texas from a previous DWI.
The open container law in Texas exceptions
There are some situations in which the open container laws in Texas allow for some reasonable exceptions.
- If you are a passenger in a taxi, bus, train, or limo, you may be able to claim an exception against Texas open container law.
- Motorists in recreational vehicles (RVs), self-contained trailers, or motorhomes might meet open container law Texas exceptions.
Keep in mind that every situation is different, and depending on the circumstances of your interaction with the police, and whether or not you were committing other crimes at the time, your circumstances and potential punishments can change drastically.
Thiessen Law Firm’s Mark Thiessen explains how the open container law in Texas applies to cars-for-hire (Uber, Lyft, etc.) in this quick video:
How to get an open container ticket dismissed in Texas
Getting an open container ticket dismissed will depend entirely on the circumstances of your citation and the quality of your criminal defense lawyer. A few ways that open container tickets and DWI cases are commonly dismissed include:
- Proving that you were illegally stopped by the police.
- Successfully contesting the results of the blood or breath tests.
- Finding errors in police protocol or finding holes in law enforcement’s story.
- Arguing insufficient evidence.
Although you cannot control how your attorney attempts to get your open container ticket or DWI charge dismissed, the number one thing you can do to help your case is hire the best DWI attorney Houston has to offer.
Charged for violating the open container law in Texas? Thiessen Law Firm can help.
Violations of the open container laws in Texas should not be taken lightly. What might seem like small charges for an open container can complicate your life fast. Police can charge people unjustly or use an open container ticket as illegitimate evidence for a bogus DWI charge. The bottom line is that every charge is worth fighting.
If you or a loved one has been charged with having an open container and/or DWI in Texas, don’t entrust your case to second-rate defense — hire Houston DWI lawyer Mark Thiessen and his team at the Thiessen Law Firm.
Mark is a perennial Super Lawyer and an ACS-CHAL Lawyer-Scientist who has what it takes to beat both blood and breath results in court, and has even won cases for serious felony DWI charges like intoxication manslaughter.
If your freedom is on the line, don’t wait another moment—contact Thiessen Law Firm today at (713) 864-9000 or contact us online to schedule a consultation.
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- What Is an Aggravated DWI in Texas?
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