Yes, it is true. Virginia is one of only seven states that does not prohibit passengers from having open containers of alcohol in motor vehicles. However, there’s more to this law than meets the eye. Below we attempt to breakdown Virginia’s law with regards to alcohol in vehicles.
If you have specific legal questions about an open container citation or any other alcohol related offense, contact the lawyers at Winslow & McCurry at 804.423.1382.
What The Federal Law Says About Open Alcohol Containers
The Federal government allows the individual states to craft their own open container laws. However, the Federal government monetarily rewards states that fully comply with Federal law § 23 U.S.C. 154 (TEA-21).
In order to be in compliance with TEA-21 states must: prohibit any open alcohol container or the consumption of alcohol in vehicles; prohibit open alcohol in vehicles in the passenger area including unlocked glove compartments where the driver can easily reach the container; prohibit all open alcohol containers with at least ½ of one percent of alcohol; prohibit open alcohol containers in any vehicle on the public highways including shoulders. Because current Virginia law does not comply with this standard, the Federal government withholds a portion of federal-aid highway construction funds.
What Virginia State Law Says About Alcohol in Vehicles
The Virginia General Assembly has been trying to codify a provision against open containers in cars for several years now. Most recently with Senate Bill 843 in 2013. The Bill would have made possession of an open container of alcohol in a motor vehicle punishable by a $25 civil penalty. However, the bill never made it out of the Committee for Courts of Justice.
The current Virginia statute that governs drinking alcohol in a motor vehicle is Va. Code § 18.2-323.1. Drinking while operating a motor vehicle; possession of open container while operating a motor vehicle and presumption; penalty.
A. It shall be unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of this Commonwealth.
B. A rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open container has been at least partially removed and (iii) the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage.
For the purposes of this section:
“Open container” means any vessel containing an alcoholic beverage, except the originally sealed manufacturer’s container.
“Passenger area” means the area designed to seat the driver of any motor vehicle, any area within the reach of the driver, including an unlocked glove compartment, and the area designed to seat passengers. This term shall not include the trunk of any passenger vehicle, the area behind the last upright seat of a passenger van, station wagon, hatchback, sport utility vehicle or any similar vehicle, the living quarters of a motor home, or the passenger area of a motor vehicle designed, maintained or used primarily for the transportation of persons for compensation, including a bus, taxi, or limousine, while engaged in the transportation of such persons.
C. A violation of this section is punishable as a Class 4 misdemeanor.
This statute only applies to the driver of the vehicle, not the passengers. Regardless of this, it is still not a good idea for passengers to have an open container of alcohol in the car, because the presence of these containers creates a rebuttable presumption that the driver has been drinking.
Under state law, passengers in cars could also potentially be written a citation under Va. Code § 4.1-308. Drinking alcoholic beverages, or offering to another, in public place; penalty; exceptions.
A. If any person takes a drink of alcoholic beverages or offers a drink thereof to another, whether accepted or not, at or in any public place, he shall be guilty of a Class 4 misdemeanor.
“Public place” is defined in Va. Code § 4.1-100 as, “any place, building, or conveyance to which the public has, or is permitted to have, access, including restaurants, soda fountains, hotel dining areas, lobbies and corridors of hotels, and any park, place of public resort or amusement, highway, street, lane, or sidewalk adjoining any highway, street, or lane.” So under the statue, drinking alcohol in a motor vehicle located on a highway, street, or lane is still drinking alcohol in a public place.
Some Cities & Counties Have Their Own Ordinances on Open Containers
Some Virginia cities and counties also have their own ordinances pertaining to this issue. For example Charlottesville City Code § 17-37 states that, “It shall be unlawful for any person to possess an open or opened container, can, cup, glass or bottle, containing an alcoholic beverage in any city park or playground or in any public street (including the downtown pedestrian mall) in the city. Any person violating this section shall be guilty of a class 4 misdemeanor.”
Chesterfield County Code § 14-23 (b) states that, “No person shall possess opened alcoholic beverage containers on any county property used for a school or on any street, road, or highway located in the county.” Violation of this section constitutes a class 4 misdemeanor.
No matter what city or county you are in, as a driver, you do not want empty containers of alcohol, or open containers of alcohol in your car’s passenger compartment. Wine bottles or liquor bottles that are partially drunk and then recorked or resealed are still considered “open” because the bottle is no longer closed with the original factory seal. If you must carry open bottles of alcohol, they should be stored in the trunk or behind the last upright row of passenger seats in an SUV.
To Summarize…
Under Virginia state law, it is still technically legal for automobile passengers to have open containers of alcohol. However, the possession of an open container creates a rebuttable presumption that the driver has been drinking. Having open alcohol containers in a car creates a situation that can often lead to charges for the driver, passengers, or all involved. Several individual cities and counties have also taken it upon themselves to pass laws that explicitly forbid open containers on public streets, roads, and highways.
Overall, it is a bad idea to consume alcohol in a car in Virginia. The potential legal issues that could arise are just not worth it.
