Before you choose to take “one for the road” literally, you might want to research the open container law in Texas. As much money as the state spends on anti-DWI initiatives and ad campaigns, they don’t exactly use as many resources to inform people how the open container law in Texas works.
The result? Many Texans find themselves breaking laws by mistake or because they’ve fallen prey to common drunk driving myths. And of course, what you don’t know could land you with expensive criminal charges and create barriers to obtaining an education, work, and more.
There are more dimensions to open container laws in Texas than you might think. Get the full story on our open container law in Texas and learn the facts every Texan driver should know before they go out this weekend.
Texas open container law history and definition
Changes around open containers, DWI and expungement make it difficult to keep current on every nuance of the laws. The open container law as we know it today was passed in 2001 and was a significant part of our state becoming more strict on drinking and driving.
According to the Possession of Alcoholic Beverage in Motor Vehicle statute (Texas Penal Code, Title 10), an individual has committed an offense if they “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” (§ 49.031(b)).
That’s right, you don’t even have to be driving to get charged with having an open container in your vehicle. So long as you are on a public highway — “The entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way…” — being found with an open container in your car can spell big trouble.
You can be charged separately for each open container found in your vehicle.
Understanding what counts as an open container in Texas
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 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. 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.
In order 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 in-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)
As you may have noted, you do not actually have to be drinking from an open container to be charged with an open container violation. Just having an open alcohol container in your vehicle is enough for you to receive a charge.
Can passengers drink alcohol in a car in Texas?
The laws and consequences of the open container law in Texas for passengers are the same as those for drivers? 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. Both passenger(s) and the driver of the vehicle can be charged with possession of an open container, even if they are 100% sober.
Exceptions to the open container law in Texas
The Texas open container law does make some exceptions for a few reasonable situations. For example, 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.
Also, if you have a recreational vehicle (RV), self-contained trailer or motorhome, you may meet the other Texas open container law exception. Open containers in the living quarters of these vehicles are generally not considered a violation of the law. Do keep in mind that every situation is different and could change drastically if you are committing other crimes in the process.
Open container law in Texas: Fines, jail time, and other consequences.
You should also know that if you’re actually caught in the act of drinking and driving, the open container charge may be the least of your worries. Being caught drinking while driving can lead to other, more serious charges, possibly including DWI.
How bad is an open container ticket?
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 hold costs beyond fines. A misdemeanor from 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, then 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.
Defenses against Texas open container laws
Aside from the open container law exceptions, a range of defenses exist for the open container law in Texas. If you were subject to an illegal traffic stop by police or an unlawful search, you may be able to successfully defend charges with a skilled attorney.
Charged unfairly? Contact the Thiessen Law Firm today.
Open container laws in Texas should not be taken lightly. Even a seemingly simple charge for an open container can be made unjustly or used as illegitimate evidence for a bogus DWI charge. 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. Instead, hire Houston DWI lawyer Mark Thiessen and his team at the Thiessen Law Firm.
As a Super Lawyer and a Lawyer-Scientist, Mark has what it takes to beat both blood and breath results in court and has even won cases for charges as severe as intoxication manslaughter. If your freedom is on the line, don’t wait another moment—contact Thiessen Law Firm today to schedule your free consultation.
Other Helpful Resources by Thiessen Law Firm:
- Why “Do Not Blow” is Bad Advice
- How to Handle a 2nd DWI in Texas
- Texas Field Sobriety Tests: What You Need to Know
- A Texas DWI & Statute of Limitations
- DWI in a Parked Car in Texas