Updated on July 15th, 2024 at 05:55 pm

open container law in VirginiaBecause Virginia’s open container laws are slightly different than those of most states, they are largely misunderstood. Most people don’t know what the law prohibits and what it doesn’t or what other laws may apply to the same conduct. This ignorance increases the risk of being charged with an alcohol-related crime or DUI.

If you’ve been charged with violating the open container law in Virginia, you need the help of an experienced and dedicated DUI lawyer. Attorney Bob Keefer of Keefer Law Firm is the man for the job. Get in touch today for help in creating a strong defense.

What is Virginia’s Open Container Law?

According to Virginia’s open container law, it’s illegal for a driver to drink while driving. If a driver has an open container of alcohol in the car, it’s assumed that they were consuming alcohol while operating a motor vehicle.

The exception to this law is the cocktails-to-go law. This law permits local bars and restaurants to sell cocktails along with their take-out. The cocktails don’t need to have original seals.

This law was passed during the COVID-19 pandemic to support the struggling food and restaurant industry. It was to be a temporary law that expired on July 1, 2022. However, it was extended to July 1, 2024, and most states are currently considering making it permanent.

But despite the cocktails-to-go law, you can still be charged with violating the open container law if it’s proven you satisfy specific elements of the crime.

What is Considered an Open Container?

According to Virginia Code § 18.2-323.1, an open container is any container that contains an alcoholic beverage, has a broken seal, or you can drink from immediately. The open container could be a can, flask, bottle, or any other vessel.

What is considered a passenger area in Virginia law?

The passenger area refers to the driver’s seat and any area that’s within the driver’s reach, including the unlocked glove compartment and the passenger seat.

However, the ‘passenger area’ doesn’t include the vehicle’s trunk or the luggage space behind the last upright seat in an SUV, hatchback, station wagon, or utility sports vehicle. It also doesn’t include:

  • The living space in a motor home
  • The Passenger area in a limousine, taxi, or bus that’s designed and used for the transportation of passengers for compensation

What is the Presumption that the Driver Consumed Alcohol?

You are presumed to have violated the open container law if you have an open container in the passenger area of your car or if some alcohol is missing from the can, bottle, or flask. Erratic driving, your physical characteristics, and the odor of alcohol in a car can also mean you were drinking while driving.

Does Virginia’s Open Container Law Apply to Passengers?

Virginia open container laws apply to drivers and not passengers in a motor vehicle. And since the passenger’s blood alcohol content level is irrelevant to driving violations, they can have an open container in a car.

But while it’s legal for a passenger to sip or drink alcohol in a car, having open containers of alcohol in the passenger area increases the driver’s risk of being charged with DWI or violation of open container laws.

Penalties for an Open Container Violation in Virginia

Violation of Virginia’s open container law is treated as a class 4 misdemeanor. The potential penalty upon conviction is a $250 fine. You can also be charged with DUI if the police officer determines there’s evidence supporting the fact that you were driving under the influence of alcohol.

What’s the Difference Between an Open Container Charge and a DUI?

A DUI charge carries more serious potential consequences than an open container conviction. Penalties include fines, license suspension, installation of an IID (Ignition Interlock Device), jail time, and attendance at alcohol education classes.

The severity of the penalties varies depending on your BAC level and whether you have previous DUI convictions.

Contact a Virginia Criminal Defense Attorney

Although the penalty for consuming alcohol in a motor vehicle, a public highway, or a street is relatively small, it’s still a bad idea to plead guilty. A conviction means you have a criminal record that’ll affect your immigration status, career, ability to get a loan, and security clearance.

Once a law enforcement police gets you an open container charge, enlist the help of a professional DUI lawyer who’ll build a solid defense to get the charges reduced, the case dismissed, or won.

Attorney Bob Keefer of Keefer Law Firm can help with this. Contact him at (540) 433-6906 for a free initial consultation and guidance through the process.