What is the Open Container Law?
Open container laws are statutes prohibiting the presence of open containers in certain circumstances. Like North Carolina’s public intoxication and driving while impaired (DWI) laws, open container laws seek to prevent people from drinking to excess from open containers on the street. In the case of open container laws, it is against the law for the driver or passenger to have an open bottle of alcohol in the car. The purpose is to discourage these passengers and drivers from getting alcohol from the open container in order to drink while driving. Penalties include simply tossing out the liquor from the open container, or paying a fine of up to $100 based upon N.C.G.S. §18B-301.
The term "open container" usually refers to a container where the top or neck is broken, or otherwise removed, exposing the liquid inside. Not all containers containing alcohol are considered "open" under North Carolina law, but the law can expand to more than just what is in the container when determining whether prohibition applies. For example, even if the bottle of liquor has not yet been opened, it may still be considered an "open container" if the beer is in glove compartment with the driver, and the driver is trying to take the beer out of the compartment to drink .
For example, let’s consider a driver with a partially unopened 6 pack of beer in a cooler on the back seat, along with some ice. This would be covered by open container laws. This is true even if there is a lot of ice on the beer. Even when the ice and soda covers the beer, an officer could consider this to be an open container. If the lid of the cooler is unlatched and the cooler is open, a police officer may consider that a violation of the open container law. It makes no difference whether the cooler is locked. The fact the cooler was available is enough.
An open container can be any receptacle for holding liquor. It does not only include bottles, but also cans. Sipped from straws and poured into "fugu", an open container includes any container from which the liquid is consumed. Thus, the open container law applies equally to a metal beer container, a paper box of wine, and glass bottle. The liquid does not have to be alcoholic. Open container laws can apply to soft drinks and soda bottles. The laws do not specifically mention "alcohol" or "liquor", but rather anytime a consumer open the container the law is considered.
Open Container Violation in North Carolina
Open container laws prohibit the use of certain alcoholic beverages in specified areas. For example, as the term applies in North Carolina, it makes it illegal, with certain limitations and exceptions, for a person to consume an "unsealed" alcoholic beverage in a public location. The state statute using the term "unsealed" simply means that the container is not perfectly intact and has been opened.
North Carolina has an open container law, N.C.G.S. § 18B-301(d) which provides:
"No person shall knowingly and willfully possess or consume an alcoholic beverage while:
(1) Driving a vehicle upon a highway or on any public vehicular right-of-way, or
(2) While holding the position of operator of or riding as a passenger in any motor vehicle upon a highway or on any public vehicular right-of-way, North Carolina General Statutes require that all open containers be within the passenger area of the motor vehicle.
North Carolina’s open container statute defines "public vehicular area" or "PVA" as "an area designed for vehicular traffic which is generally accessible to the public." The statute goes on to indicate that cities can regulate the consumption of alcoholic beverages in any designated areas.
The general rule is that any location that is closed to public vehicular traffic, such as back roads and private property are not considered public vehicular areas.
North Carolina’s open container statute is not as strict as many other states in that it does not prohibit the consumption of alcoholic beverages by occupants of motor vehicles. However, it is only a Class 3 misdemeanor if anyone other than the operator of the motor vehicle is guilty of violating the statute.
A North Carolina DWI conviction, whether it be based on drinking alcohol or consuming drugs, will result in a conviction for the offense of driving while impaired in violation of North Carolina General Statute § 20-138.1. The conviction under that statute can then be used as a prior conviction should a driver subsequently appear on the roadways of North Carolina after he or she has had his or her license restored. That is, the DWI offense counts as a prior conviction which enhances any new DWI offense.
A violation of the open container law does not trigger a prior conviction enhancement.
Consequences of Open Container Offense
Violating the open container prohibition can result in a misdemeanor charge that carries a fine of $200.00. In many cases, that can be handled as a non-arrest citation called a citation for a misdemeanor offense.
A Class 2 misdemeanor in North Carolina can be punished by either a sentence of community service or up to 30 days in jail and a fine. Given the unusual circumstances of the COVID-19 pandemic and the problems that it has caused by overwhelming the NC judicial system, many district courts in North Carolina will give a defendant an option to pay fines and fees on a conviction for a class 2 misdemeanor such as the one for open containers in the passenger area. Many courts in North Carolina urge defendants who would otherwise qualify for community punishment or other forms of probation to accept the punishment of simply paying costs. However, if there are repeat convictions within 12 months, the court could impose "substance abuse treatment." That section of the law reads as follows: A person convicted under this Article for a violation of G.S. 18B-301(a)(1), 18B-301(a)(2), or 18B-301(a)(3) is a defendant in need of substance abuse treatment if the defendant: (1) Has been convicted of violation of G.S. 18B-301(a)(1), 18B-301(a)(2), or 18B-301(a)(3) on two or more occasions within a 12-month period and (2) Has not previously been ordered by a court to receive substance abuse treatment. If a defendant is a defendant in need of substance abuse treatment, the court may, as a condition of the defendant’s probation or as a condition of an order for the defendant to attend substance abuse education safety and treatment center, require the defendant to complete a course of an alcohol and drug assessment through a program approved by the Department. The cost of any course is to be paid by the defendant. A defendant who willfully fails to comply with the court’s order may be held in contempt by the court. A defendant ordered to complete the course of an alcohol and drug assessment shall not have the charge of violating G.S. 18B-301(a)(1) through (3) as a result of a new arrest for the subsequent 12 months after entering the program, unless the current charge is for an offense involving death or injury to another person.
Although there is no criminal record from the first conviction and you won’t have to go to jail for the first conviction, the open container prohibition can be treated much like a traffic citation in North Carolina. Just like a speeding ticket or a ticket for driving without an operator’s license, if you accumulate too many convictions in too short a time period, you can be treated like a habitual offender and have to enter substance abuse treatment. While the purpose of this punishment is to help people confront damaging drinking habits, the open container restrictions do not take into account how rare it is for someone to violate the open container laws in North Carolina and therefore subject themselves to the possibility of such a punishment.
It is important to also stress the difference between a regular, non-alcoholic drink that is improperly in the passenger area and an opened container of an alcoholic beverage. It is not an open container violation to put a closed container of alcohol in the passenger compartment, such as a cooler full of unopened beers. The statute also applies to opened containers of alcohol that are in the process of being consumed. Having an open container of a beer inside the passenger area of your car while you are in the driver’s seat and drinking the contents of that can or bottle is certainly a crime under the open container prohibition. A cup or glass containing alcohol that is being consumed by a passenger also qualifies for a violation of the open container prohibition.
Open Container Laws for Drivers and Passengers
The open container law in North Carolina affects all occupants of a vehicle, both drivers and passengers. However, under North Carolina law, only the driver can be charged with a violation of the statute. The general rule for determining who is guilty under the statute is that liability lies with the person having initial dominion and control of the open container. There are also special rules for truck drivers and those in the back seat of taxis and limousines.
If an open container is found in the passenger area of a vehicle, the owner of the vehicle is prima facie responsible for the violation. A license plate identification is sufficient to prove by a preponderance of the evidence that the driver is guilty and if necessary the court may issue a bench warrant for arrest of the driver if that person fails to appear.
However , once a police officer makes a citation for a violation of the statute, it is up to the Court to prove who is responsible.
An apartment complex may be liable for violation of the open container statute if a resident gives another person access to one of the apartments or club house and that person violates the open container statute.
The rules for truck drivers and passengers in taxis or limousines are special and apply only for certain publicly licensed vehicles. For passenger transportation, the statute only applies to drivers of buses and taxicabs.
According to at least one case, the back seat passengers in a taxi or limousine cannot be charged with violation of the statute, only the driver while a passenger in the front seat can be charged.
Prevention and Legal Information
If you are charged with an open container violation in North Carolina, it is strongly recommended that you consult our team of attorneys right away. Our team can describe all of the penalties associated with the crime and review your particular case to determine what sort of defense may be appropriate for your specific situation. The best way to avoid involvement in an open container violation is to leave alcohol in the trunk of your vehicle or have a designated driver who does not consume alcohol before driving home.
Changes to the Open Container Law
Updates to North Carolina Open Container Laws
While the open container laws in North Carolina have remained relatively stable over the past few years, the North Carolina general assembly has now made it illegal to have an opened container of alcohol in a car at all. Even if you have open alcohol in your car as a passenger rather than a driver, the legislature has now made it illegal. Senate Bill 20 was ratified on June 30, 2017 and is the first time that the North Carolina House of Representatives has outlawed having an open container of alcohol in a personal vehicle . Prior to Senate Bill 20, an officer had to catch someone with an open container of alcohol inside of a car in order to write a citation.
However, now if a police officer sees a person driving their vehicle with an open bottle of gin, they can pull them over. If someone is pulled over and has an open container of alcohol, that person can be charged with the traffic offense of "consuming or possessing an open container of an alcoholic beverage." The new law also includes marijuana in the new open container law.