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”.
Please click on the links below to go directly to your topic of interest:
- Penalties for Possessing an Open Container in a Car in California
- Open Container in A Parked Car in Los Angeles
- Legal California Defenses for Open Container
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).
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.
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.
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.
- 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.
- 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“.
- 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.
- 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.
- 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.
- You drive a camping bus or you are in a boxcar in its living quarters consuming alcohol.
- 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.
- 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.
- 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.
(818) 921 7744 Call anytime to get a free consultation with Los Angeles DUI Attorney.
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