“Open container” California Laws

March 18, 2018

open container

In almost all U.S. states it is prohibited to drink or carry alcoholic beverages or loose marijuana inside a vehicle. There is a number of laws in California that establish norms for drinking alcohol or possessing an alcoholic beverage while operating a vehicle.  California Vehicle Code section 23222 is the primary code section criminalizing “open containers”.

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They are known as California Open Container Laws and determine the following:

  • A driver or passenger must not drink any spirits while in a car upon a highway, including beer, wine, low-alcoholic beverage, and any other drinks with an alcohol content of 1/2 of one percent or more of alcohol by volume.
  • It’s illegal to have an open bottle in any seating area of a vehicle while driving – driver’s side, passenger’s side or back seat.
  • Possession of loose marijuana in a car is also illegal.
  • A person who is under 21 can not possess any amount of alcohol or marijuana.  (A person over 21 can only have 28.5 grams or less of marijuana).

An “open bottle” doesn’t necessarily mean a drink without a cork on top of it. It can be any liquid container which is uncorked, unsealed, partially consumed. Even if the bottle is open but it’s absolutely full it’s considered as “open bottle”. Both a driver and a passenger are subjected to the open Container Laws.  It makes no difference, whether you actually drink it or not – if you pried the top of the bottle, you’ll be responsible.  Even if you are just taking empty containers to the recycling bin, it is safer to carry them in your trunk because it is not “seating area”. Open bottles must be out of driver’s or passengers’ reach in the vehicle compartment. You’d better keep open alcoholic beverages in the trunk or in a locked area. Otherwise, you may be charged with a crime for breaking the Open Container Law. Similarly, having loose cannabis is a violation of California’s open container laws.   The container does not have to be “sealed”, merely closed is enough.  CVC 23222(b)(1).

Penalties for an Open Container in a Car in California

The penalties depend on your age. If you are 21 or over, the penalties for an “open container” are not as serious as for a DUI. “Open container” ticket is up to $250. It can be viewed as a traffic ticket. However, if the police notice an open alcoholic container in your car, they may suspect you of DUI. An open alcoholic container can be considered a “probable cause” by a judge or a police officer and it can lead to a DUI investigation, including various field sobriety tests and a breathalyzer’s test.

If you are under the legal drinking age, possession of an open container can subject you to a misdemeanor offense.  Possession of any amount of Marijuana is also illegal.  In that case, you may face up to 6-month jail, probation, loss of your car for up to 30 days and a $1000 fine. A conviction for an open container as a minor can be reported to the DMV by the court and affect your insurance rate. Further, if you are under the legal drinking age, you may be convicted even for simple possession of an alcoholic beverage, which can also be sealed. Thus, being a passenger or a pedestrian will subject you to liability for possession of an alcoholic beverage. Similarly, the presence of a container with an alcoholic beverage anywhere inside a vehicle is enough to charge a minor driver with a misdemeanor offense.

Open Container in A Parked Car in Los Angeles

The law says that you must not keep an open container of an alcoholic drink in your car while you are driving on a highway or on land.  The law similar to marijuana – an open container of cannabis is a violation of the law.  It is not a violation to possess an open container in a parked car.  Are you in violation of the law, if you are consuming an alcoholic beverage in a parked car?

First off, the police have no “probable cause” to approach you or to do any investigation because there are no signs of a crime being committed.

—>Some police officers believe that possession of Marijuana will allow them to search you and your car.  This is not correct! The California law is clear on that!  Both case law (People v. Shumake) and California Health and Safety Code Section 11362.1 makes it illegal to search a car based on legal possession of Marijuana:

NO CONDUCT DEEMED LAFUL BY THIS SECTION SHALL CONSTITUTE THE BASIS FOR DETENTION, SEARCH, OR ARREST (CHS 11362.1)

So, an open beer bottle, unless you are a minor, is not a sufficient basis for to arrest or to file charges for violation of California Vehicle Code. Having said that, the police might try to find an excuse to approach an individual who is consuming an alcoholic beverage in a car. It is best not to keep any alcoholic beverages in the car or consume alcohol while near an automobile, no matter if the car is parked.  Same goes for Marijuana, it is illegal to possess open cannabis in a car when driving.   Also, if you are in possession of marijuana in a car, you can only have 28.5 grams (CVC 11362(a)(10).  In a public area, neither the driver nor the passenger may have an open container of alcohol.

Legal California Defenses for Open Container

If you are charged with Open Container in California, there are many defenses that a skilled lawyer can use to help you fight that charge.

  1. The Prosecutor’s Office must prove that it was YOU who possessed an open container in a car. If there are multiple persons in the car, it will be difficult for the prosecutor to prove whose marijuana or alcohol it was unless there is evidence pointing to you. The evidence may be an admission or statement of your passengers implicating you.  But, the prosecutor must prove that the container was in your possession, not just in the car.
  2. The police must have “reasonable suspicion” to stop you and a “probable cause” to search the car. According to the United States Constitution, law enforcement officers must have reasonable grounds that the crime is taking place before pulling you over. If the police officers approached you without a good reason and found an open bottle, the case can be dismissed for violation of your constitutional rights against “unlawful searches and seizures“.
  3. As an exception to the rules, you may carry alcoholic beverages for the purpose of transportation. For example, if you work for a delivery company that has the license to sell and carries alcoholic drinks under the Alcoholic Beverage Control Act, you may have alcoholic beverages in your car during working hours as part of your job. This law permits you to possess alcoholic beverages even if you are under 21.
  4. If you are under 21, you can avoid prosecution or get your case dismissed if it could be proven that you had your parents, adult relatives or other legal guardians with you in the car.
  5. If you work as a taxi, limo or pedicab driver for a licensed transportation carrier you cannot be found guilty if your passengers had an open bottle.
  6. You drive a camping bus or you are in a boxcar in its living quarters consuming alcohol.
  7. You carry open containers in a locked box, in a special closed compartment, or somewhere out of your reach, such as a trunk of the vehicle.
  8. You can carry an open container in the area of the vehicle where there are no passengers, i.e the trunk, the back of a van, or the bed of a pickup.
  9. The marijuana plant was in a closed container or it was not yours

If you have been charged with an open container violation in Los Angeles, CA, DUI lawyer can help you. Call us now for a free DUI consultation.

Los Angeles DUI Attorney


(818) 921 7744
 Call anytime to get a free consultation with Los Angeles DUI Attorney.

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8 responses to ““Open container” California Laws”

  1. JENNIFER LITTLEFORD says:

    I would lo
    I’ve to talk to someone.. I was parked in Los Angeles county at 9:00am..and cops pulled up.. The bottle was open.. I did not say it was mine. It was in my SUV.. I’m not on probation or have been in any trouble…

  2. Frank McCutcheon Jr. says:

    Today I was cited with an open container citation and I was visiting a friend and the officer who patrols that area arrived to the alley and talked with my friend and then was going to perced on , the officer saw me got out of his squad car and cites me with an open container and charged me with open container and being drunk in public and I didn’t have any knowledge of the beer can that was next to where I was seated and wasn’t drinking and wasn’t drunk in public, I was eating a sandwich and texting my fiance.

    • Hello Frank,

      I did not see a question, but I am guessing you want to know how to defend this case. “Drunk in Public” in California is a violation of Penal Code section 647(f). Under the Penal Code, PC 647(f) is a misdemeanor that is not reducible – and therefore – it would always stay on your record. Also, reading your explanation, you are innocent for at least two reasons. First, the container was not yours, and second, “drunk in public” is not an easy case to prosecute because you must be so drunk that you can’t exercise care for your safety or you must block a sidewalk (etc). I, therefore, recommend that you talk to an attorney regarding this case. You should be able to get a dismissal or a very good plea deal that avoids any serious punishment and “life-time” stigma. Call us for more details.

  3. Daniel Brantuo says:

    Hi, My name is Daniel Brantuo and im from London, England. I came to LA for the first time from January 24th – 31st last month. On the 26th January, I was in a passenger seat of a rented vehicle in the Hollywood area. Me and my two friends got stopped by los angles police department, I got handcuffed and put in the back of the car for having an open container in the front of the vehicle.

    I got issued a traffic ticket (Ref: E937096), but I don’t know how to deal with this because.. 1. I live in UK, 2. It hasn’t got up on the system as of yet and 3. I believe i was wrongly mistreated.

    I wanted to know if I pay this fine would it stay on my record? and would it affect me in anyway in the future. I’m worried this will affect my name in the future so i want to get this resolved as soon as possible.

    Please get back to me ASAP on +447377334078 or daniel.brantuo@hotmail.co.uk

    Many thanks. Daniel Brantuo

  4. Montana says:

    I am underage and was with a group of friends, at a bonfire on the beach. We didn’t know the beach was closed until cops showed up and gave us parking tickets. While they were writing parking tickets for my car they noticed a open alcohol can in the car. There was five people in the car, I said it was mine because the rest are in the military. I don’t know how to go about to this because I’ve never been in trouble before.
    Will I need a lawyer?
    Am I going to have a misdemeanor on my record?
    Everywhere is closed to covid 19 including the court. And I don’t know what to do.

    • Hello Montana,

      It is a good idea to have an attorney represent you in this situation. You can probably work out an infraction plea deal on these facts. I believe a misdemeanor can be avoided. As far as COVID 19, most courts will continue your ticket for about 60 days to work out operations – so, this will buy you some time but will not cause your ticket to disappear. Good luck and call me directly with any additional questions at (323) 464-6424.

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