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Open Container Law

Virginia’s open container law criminalizes drinking while driving, and it makes convictions relatively easy to obtain.

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:

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 has that. You had a glass of wine, but did the safe thing and had the restaurant re-cork the bottle so you could take it home. It’s possible you could 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 – but you don’t want a good defense, you want to avoid any ticket altogether.

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 or, if you are driving a SUV, the area behind the last upright passenger seat. Anywhere else, you may be asking for trouble. This offense is a class 4 misdemeanor which is a crime punishable by a fine up to $250.00.

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