Virginia Open Container Law

virginia open container lawVA Open Container Law Overview

Many people don’t understand how Virginia’s open container law operates. The law criminalizes drinking while driving, and it makes convictions relatively easy to obtain. Let’s look at it.

The statute (18.2-323.1) has two parts. Section A says that it’s unlawful to drink while driving. That’s pretty straightforward.

The portion that snags people is Section B. It creates a rebuttable presumption that the driver has violated the statute if:

  1. An open container is in the passenger compartment,
  2. Some of the alcoholic beverage has been removed from the container, and
  3. The driver does or says something that indicates they’ve been drinking.

What does that all mean? Let’s look at an example.

Open Container Case Example:

I was sitting in Spotsylvania General District Court and heard a drinking-while-driving case called. The officer testified that he found an empty beer can in the car and that it was cold. The driver told the officer that she had drank at a friend’s house an hour and a half before driving. She blew a .03 on the preliminary breath test.

The defendant testified that the can was old. She said it was cold that night, so everything in her car was cold. She admitted to drinking but maintained it was only before driving.

What do you think happened? Yep, convicted of drinking while driving.

This law could also unjustly catch people in another common scenario: You go out for dinner and have some wine. The restaurant re-corks the bottle. You put it in the back seat of the car and drive home.

If you’re pulled over and the officer sees the bottle, you’re in trouble. The only other element he needs is some indication of drinking; he can probably claim that he smelled alcohol on your breath.

In that scenario, you might be able to defend the case if the cork was truly seated deep into the bottle. But the law doesn’t provide an exception for that. Any container is considered “open” if it’s not the original factory seal.

The best way to protect yourself is to never carry any type of open or empty alcohol containers in your passenger compartment. Put them in the trunk. If you drive a van or SUV, the statute says that the area behind the last upright passenger seat is also safe.

Remember: no open alcohol containers in the passenger area.

Contact Our Virginia DUI Defense Lawyers Today

If you’ve been charged with drinking while driving, contact our Virginia DUI Defense attorneys at Flusche & Fitzgerald, Attorneys at Law to discuss your case. We’ll work on a defense together.

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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