Driving with an Open Container in Virginia

  • Posted on: May 19 2023
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The state of Virginia does not have a law expressly prohibiting passengers in a motor vehicle from possessing an open container of alcohol. However, if law enforcement discovers an open container in a vehicle, the driver can face serious consequences under Virginia’s open container law. In this article, we discuss driving with an open container in Virginia. 

Virginia’s Open Container Law

The open container law in Virginia applies to the driver of a vehicle—not the passengers. Pursuant to Virginia law, it is illegal to drink alcohol while operating a motor vehicle. In addition, if there is an open container in a vehicle, then there is a rebuttable presumption that the driver was drinking and driving. An open container is a container that lacks the original factory seal. Specifically, this presumption arises if the following conditions are met:

  • An open container is in the passenger area of a vehicle,
  • At least a portion of the alcohol in the container is missing, and
  • The driver’s behavior or odor of alcohol in the vehicle can be reasonably associated with drinking alcohol.

Under the law, the passenger area of a motor vehicle is defined to include:

  • The driver’s seat,
  • Any area that is within the driver’s reach, and
  • Areas designed to transport passengers.

However, the passenger area of a motor vehicle does not include the trunk or the area behind the last upright seat in a station wagon, SUV, or van. And although the open container law in Virginia only applies to drivers, a driver who allows passengers to carry an open container or consume alcohol significantly increases his or her risk of facing an open container charge.

Cocktails to Go in Virginia 

An exception to the open container law is Virginia’s cocktails to go law. Under this law, restaurants are permitted to sell mixed alcoholic drinks with take-out food. These drinks are not required to have the original factory seal. The law, which was enacted during the COVID-19 pandemic, remains in effect until July 1, 2024. 

Open Container Penalties

A person who violates the open container law in Virginia commits a class 4 misdemeanor. A violation of the law is punishable by a fine of $250. In addition, a driver may face a separate DUI charge if it appears that he or she is driving while intoxicated or driving under the influence of alcohol or drugs.

Contact a Virginia Criminal Defense Lawyer 

If you have been charged with violating Virginia’s open container law, you need an experienced criminal defense attorney in your corner. At Walker Jones, PC, our knowledgeable criminal defense attorneys are here to aggressively defend you against your open container violation charge. When you come to us for help, we will do everything we can to protect your rights and obtain a successful result in your case. Please contact us as soon as possible to schedule a free consultation with one of our talented attorneys.

Posted in: Criminal Defense