Drinking in a car comes under the state’s open container laws and the prohibition against public intoxication. These laws are found in Vehicle Code Sections 23221 to 23229: Below is a legal explanation of these laws.
Obviously, having a cup of beer or vodka in your hand constitutes having an open container.
- Can, or
- Box whose seal has been broken
High school and college students under 21 are notorious for drinking in motor vehicles and police officers are especially aware of this. As a motorist under the age of 21, you are prohibited from:
- Drinking alcohol in a motor vehicle
- Driving a car knowing that it has alcoholic beverages in it, open or not
- Being a passenger in a car and possessing an alcoholic beverage, open or not
- There was an adult in the motor vehicle with you
- It is part of your job to transport alcoholic beverages either as a driver or passenger
- Your parent was giving instructions about the alcoholic beverage (“hold it until it can be disposed of”)
The standard that police must follow is that there be specific and articulable facts to believe that you were or are engaged in an unlawful act. This means stopping you for a traffic violation, equipment violation or for erratic driving. You can also be detained or questioned for sleeping in your car that is stopped on the shoulder or in a parking lot late at night after businesses are closed.
Police cannot search your car for any reason or if they stop you for a traffic violation absent facts that would lead them to reasonably believe you are hiding contraband, firearms or some other illegal items. Police may search your car if:
- You are placed under arrest but they may only search the immediate vicinity such as being able to reach inside
- They find contraband in plain view (drugs, a firearm, open container)
- Conduct an inventory search of your car if it was impounded
- They have probable cause to believe your car has contraband, such as a witness observed you putting weapons in your trunk or bags of marijuana, or that they would find evidence relating to a crime for which the driver or passenger was arrested (getaway car for bank robbery)
- You gave consent
Otherwise, police must secure a search warrant, which must also be based on probable cause
Defenses to the open container laws are as follows:
If the container was not accessible, then you have a defense. It must have been in the trunk, bed of a pickup truck or in a locked container in the back seat. Hiding it in your glove compartment, if the police had probable cause to search your car, does not make it inaccessible. In other words, it must be in an area not normally occupied by passengers.
If there are multiple passengers in the passenger vehicle and no one is holding the open container, then the police or prosecutor may be unable to prove who had possession.
You are not prohibited from possessing an open container of alcohol if you are a passenger in a:
- “Housecar” such as an RV
An Uber or Lyft may or may not qualify since it is a vehicle for hire in some aspects though it is also a passenger vehicle. Of course, prosecutors will argue that it does not qualify as a taxi since ride-sharing drivers do not possess commercial driver’s licenses. It is best that if you are an Uber or Lyft driver to not allow passengers to drink in your vehicle.
So long as you were not impaired or have a blood alcohol concentration (BAC) level of 0.08% and were driving, or you are a passenger in a passenger vehicle, then being in violation of the state’s open container laws is an infraction. An infraction is not a criminal offense and you only face a fine of up to $250 and no jail time. It also does not go on your public record.
The DMV will put one point on your driving record, however. An accumulation of 4 points in one year or 6 points in two years will result in revocation of your license.
However, if you are a minor, you can be charged with a misdemeanor, though you do not face any jail time. A typical penalty is:
- Community service
- And/or one year revocation of driver’s license
- Impoundment of vehicle
Can the driver be charged with open container if a passenger has an open beer?
Yes, but only if the driver was aware that the passenger had an open container. This is determined by what the arresting officer observed.
Can a keg of beer be considered an open container in a car?
If the keg was in the flat bed of a pickup or the trunk, then it is not considered unlawful since it is in an area not normally occupied by passengers. But if there are passengers in the flat bed with the keg where the flow of beer has been activated, then driver and any passengers drinking from it can be charged.
What is a housecar?
California law defines this as any vehicle that has been designed or permanently altered for human habitation, including a vehicle with a camper that has been permanently attached. This can include an old school bus with a shower, toilet and kitchen equipment. An RV is a housecar for purposes of California law so that you can have open containers of alcohol and not be violating the law, so long as the driver is not drinking.
Police will immediately suspect you of DUI if you were observed with an open container in hand or if you have an open container in plain view and you were validly stopped, such as for a traffic offense. If you are charged and convicted of DUI and have an open container, this is an aggravating factor. This can lead to an increased fine and/or additional time in jail.
It is unlawful to appear in public while intoxicated. This includes being drunk in a motor vehicle. If your car was validly stopped and police have cause to believe you as a passenger are intoxicated, then you may be arrested and charged under Penal Code Section 647(f).
Facts that can lead an officer to this conclusion include your demeanor (slurred speech, odor of alcohol, confusion) or observing an open container of alcohol in your hand.
This is a misdemeanor offense with penalties of up to 6 months in county jail, a fine up to $1000 and informal probation for 3 years.