DUI and Open Container Laws

Drinking while DrivingEvery DUI offense is unique and specific circumstances of the arrest may lead to additional counts or increased penalties. In some cases, the arresting officer may find an open container of alcohol within the defendant’s vehicle. Driving with an open container of alcohol is often an infraction offense that is punishable by a $250 fine. However, the open container may be used as evidence of the driver’s intoxication. In some limited cases, the presence of an open container of alcohol may actually be helpful to the defense.

Open Container Laws

An open container is an alcoholic beverage which is exposed and open, has a clearly broken seal or has been at least partially consumed. The alcohol does not have to be in its original container and the offense includes alcohol that been mixed with non-alcoholic beverages. Any passenger in a vehicle can be charged with an open container offense. Under California Vehicle Code Section 23221 VC, it is illegal to drink alcohol in a car. It is unlawful to even possess an open container of alcohol under California Vehicle Code Section 23222(a) VC. Under California Vehicle Code Section 23224 VC, it is unlawful for a person under the age of 21 to possess an open container of alcohol. This offense is typically an infraction, however minor driver or minor passengers in a car can be charged with a misdemeanor level offense and could face up to six months in jail and a $1,000 fine if convicted.

DUI and Open Container Laws

Courts, prosecutors and law enforcement officers typically consider an open container of alcohol in a vehicle to be an aggravating factor. The presence of alcohol may be used as circumstantial evidence of a defendant’s alcohol use at the time of driving. The presence of an open container may also be used to refute a driver’s claim that he or she had not consumed alcohol. Drivers can be cited for the open container violation as well as the underlying DUI offense and those convicted can face additional penalties or conditions of DUI probation, including a longer drug and alcohol education program, AA meetings or required attendance of the MADD Victim Impact Panel (“VIP”).

Open Container and DUI Defense

There may be certain situations where the presence of an open container of alcohol can be used by the defense in a DUI case. In many cases, an officer will cite the odor of alcohol as grounds for expanding a DUI stop and conducting a full DUI investigation. However, if the odor of alcohol was caused by an open container in the vehicle and not from the driver, there may be grounds to challenge the validity of the arrest and the assumption that the driver had been drinking alcohol.

In some DUI offenses, there may not be clear evidence that the defendant was actually driving a vehicle while under the influence. This may be the case where a driver was involved in an accident or is found asleep in a vehicle. The presence of an open container may be used to show that any drinking occurred after the defendant had stopped driving or while the defendant was legally parked. While the defendant may be guilty of an open container infraction, the People may have difficulty proving that the defendant drove while under the influence. It may be necessary to use a toxicology expert to explain why chemical test results are consistent with drinking that occurred after the defendant had stopped driving.

If you have been charged with a DUI offense involving an open container, it is imperative that you speak with an experienced DUI attorney immediately. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Michael Kraut works hard to ensure that every avenue of defense is explored and that his clients receive the best defense possible.

For more information about DUI and open container laws, and to schedule your free consultation, contact Michael Kraut at the Kraut Law Group located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.

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