Drinking and driving will always be illegal. But what if you didn’t finish your bottle of wine from dinner and wanted to go home with it? Or what if you purchased a few cans of beer to drink at home? Although Virginia does not explicitly prohibit having an open container of alcohol in a moving vehicle, its presence can still put you at risk of facing criminal charges.
What is an open container?
In Virginia, an open container is any container that has or had an alcoholic drink in it that is not the original sealed container from the manufacturer. The container could be anything from a tumbler or flask to a can or bottle.
How rebuttable presumption works
Having an alcoholic beverage in your car, whether it is yours or a passenger’s, because of a legal concept called “rebuttable presumption.” It is an assumption by the court that something is true unless the defendant can prove otherwise.
The court may establish a rebuttal presumption of intoxication if, upon arrest, the police discover an open container in your car. The following circumstances give rise to a rebuttable presumption:
- An open container is present within the passenger area of the vehicle
- The alcoholic beverage has been partially consumed
- The driver displays characteristics consistent with alcohol consumption (such as the smell of alcohol or slurred speech)
The definition of a passenger area, which is essentially any area that is within reach of the driver, adds to the complication. This can include an unlocked glove compartment or spaces to hold passengers. If you must travel with alcoholic beverages, keeping them in these areas may be the safest option:
- Trunk of your car
- The area behind the last upright seats (if your car is a van, station wagon, hatchback or other similar vehicle)
- A locked glove compartment
- Living quarters (if your car is a motor home)
Breaking Virginia’s open container law could lead to a misdemeanor charge. While it may seem minor, pleading guilty creates a criminal record. This can negatively affect your chances of gaining employment or securing housing. If you’re dealing with alcohol-related or driving while under the influence (DUI) charges, consulting an attorney could provide you with a more effective strategy.