Many Virginians are surprised to learn that the Commonwealth does not currently prohibit passengers in a motor vehicle from having open alcohol containers. Several attempts from the Virginia General Assembly to codify a provision against open containers have failed. Possession of an open container by a driver, however, is prohibited.

The 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.

1. It shall be unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of this Commonwealth.

1. 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.

1. 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. However, if an officer notices an open container during a routine traffic stop, it creates a rebuttable presumption which allows the officer to pursue investigating the driver for potentially driving under the influence. The container is presumed to be in the possession of the driver until demonstrated otherwise.

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.

1. 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.” If your passengers drink while the vehicle is on a highway or street, they will be in violation of this provision.

While there is no state-wide provision prohibiting all open containers in vehicles, several towns have adopted ordinances that are more restrictive than the state law. You should research your jurisdiction before assuming any open containers are permitted in your vehicle.

CONCLUSION

Under Virginia state law, it is 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, making it more likely that the driver will be cited with having an open container, or driving while intoxicated. Individual cities and counties also have adopted ordinances prohibiting open containers in vehicles altogether, so be sure to check your local jurisdiction, as ignorance of the law will not be considered a valid defense.

As a driver, you want to ensure you are not driving with open containers to prevent the cost and hassle of a potential citation. Bottles that are partially consumed and then closed are still considered “open” because the bottle is no longer sealed. If you decide to carry open bottles of alcohol, you should store them in the trunk.