Drinking While Driving – Open Container In Vehicle

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Drinking While Driving and Open Container in a Vehicle in Virginia

Virginia Code 18.2-323.1 prohibits Drinking while Driving and Open Container in a vehicle. It also creates a rebuttable presumption that you have been drinking alcohol if there is an open container present along with other factors:

A. It shall be unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of this Commonwealth.

B. A rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open container has been at least partially removed and (iii) the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage.

For the purposes of this section:

“Open container” means any vessel containing an alcoholic beverage, except the originally sealed manufacturer’s container.

“Passenger area” means the area designed to seat the driver of any motor vehicle, any area within the reach of the driver, including an unlocked glove compartment, and the area designed to seat passengers. This term shall not include the trunk of any passenger vehicle, the area behind the last upright seat of a passenger van, station wagon, hatchback, sport utility vehicle or any similar vehicle, the living quarters of a motor home, or the passenger area of a motor vehicle designed, maintained or used primarily for the transportation of persons for compensation, including a bus, taxi, or limousine, while engaged in the transportation of such persons.

C. A violation of this section is punishable as a Class 4 misdemeanor.

This charge is a Class 4 misdemeanor which carries no jail time but a possible $250 fine. While this charge does not carry jail time, it is a criminal offense, which Virginia does not usually expunge. It will remain on your record. The factors above create a rebuttable presumption that the driver has been drinking, but that presumption can be overcome with other facts, to be discussed and raised by your attorney.

Consult with an Open Container Attorney

If you have been charged with an open container offense in a vehicle, contact us. Our Client-Focused Virginia Defense Attorneys are experienced in courts across Northern Virginia and are ready to help you.