Depending on the laws of your state, a person is generally considered to be legally intoxicated if they have a blood alcohol content (“BAC”) of 0.08% or 0.10%. When a person chooses to operate a motor vehicle after drinking alcohol or taking drugs that impair their senses, there may be many legal ramifications including:
- Getting ticketed;
- Criminally fined;
- Arrested; and
- Charged for driving while intoxicated (“DWI”), or the more commonly known term, driving under the influence (“DUI”).
While a person who has been charged with drunk driving generally only receives a misdemeanor for their first offense, they may still be charged with a felony if they have injured another person or caused damage to property. They may also face felony charges when it was not their first drunk driving offense.
Additionally, while most states will charge a drunk driver with a DUI, each state has its own set of criteria for what is considered to be a drunk driving offense. Finally, it is important to note that drunk driving is more than a simple traffic citation; it is considered to be a criminal offense. As such, if you are convicted of a drunk driving offense, it will appear on your criminal record.
If a police officer suspects that a person is driving drunk, they will have probable cause to pull that person over. This includes when they see that a person is speeding or swerving, and if they observe alcohol or drug paraphernalia in the vehicle.
After a person is pulled over, a police officer will most likely request that they step out of the vehicle and take one of the following tests in order to determine whether they are sober:
- Breathalyzer: This is a handheld device which measures the concentration of alcohol in a person’s system by having them blow into the device. It can be administered either at the scene where the car was pulled over, or at a police station;
- Blood or Urine Testing: This test requires a medical professional to conduct the testing and produce lab results. Additionally, the police must obtain a warrant first; as such, this test is not generally administered at the scene; and/or
- Field Sobriety Tests: Commonly given at the scene, they include a variety of different activities that are designed to test a person’s balance and agility, such as touching a finger to your nose, reciting the alphabet, or standing on one foot while counting.
If a person fails any of these tests, the officer will have grounds to ticket and arrest them for drunk driving. Additionally, if a person refuses to perform any of the tests that can be administered at the scene, a police officer can still arrest them if they suspect that the individual has been driving drunk.
Things such as the smell of alcohol on a person’s breath or from open containers in the car, even when they are empty, can be used as evidence that a police officer utilizes in order to arrest them for drunk driving.
What Are Open Container Laws?
An open container law is what makes it a criminal offense to have an open container of alcohol inside the passenger compartment of a motor vehicle. Open container laws are considered to be an especially important tool in the fight against drunk driving.
In many states, a violation of an open container is considered to be only an infraction with a fine. However, if the driver or a passenger is under the legal age of 21 and is caught with an open container of alcohol, the punishment can be considerably more severe. Additionally, many drivers could be charged with a DUI if the open container was with the driver at the time of driving.
Essentially, these laws state that you cannot operate or drive a motor vehicle with an open alcoholic beverage, even if the alcohol has not been consumed by the driver or passenger.
While open container laws vary from state to state, the federal government has established a program intended to encourage states to conform their open container laws to certain federal standards.
A state’s open container law must meet six standards in order to fully conform to the federal requirements:
- Prohibit possession of any open alcoholic beverage container, as well as the consumption of any alcoholic beverage in a motor vehicle;
- Apply to all types of alcoholic beverages;
- Define the passenger area of any motor vehicle as the area designed to seat the driver and passengers while the motor vehicle is in operation, as well as any area that is readily accessible to the driver or a passenger while in their seating positions, which includes the glove compartment;
- Apply to all drivers and passengers in the motor vehicle;
- Apply to a motor vehicle while it is located anywhere on a public highway, or the shoulder of the public highway; and
- Specify that officers have the authority to stop a vehicle in order to enforce the open container law.
All but fourteen states have open container laws conforming to the federal standards.
What Are Open Container Violations?
Open container violations are generally defined as possessing an open container of an alcoholic beverage in the passenger area of a moving vehicle. This includes an area of the vehicle that is considered to be “readily accessible” to the driver or a passenger, including consoles and glove compartments as was previously mentioned. It includes alcoholic beverages of all types, and generally refers to vehicles that are located on public roads and highways.
Open container violations are frequently associated with routine traffic stops and DUI checkpoints. As was previously mentioned, if a police officer spots an open container during a routine traffic stop, they are generally allowed to confiscate the evidence and file charges for an open container violation.
There may be some defenses for open container charges, including:
- The beverage was actually in a place where it is legal to store open containers;
- The beverage was not truly classifiable as an alcoholic beverage; and/or
- The car was not in operation on a public highway, or in an area subject to regulation.
However, open container charges can be considerably difficult to defend against, as many cases involve obvious violations. Generally, the expert opinion of a lawyer is needed when dealing with charges associated with open container violations.
What Are Some Penalties For Drunk Driving In General?
The penalties for drunk driving convictions will vary by state law, as well as the severity of the crime. However, some potential penalties that a person may face include:
- Serious criminal fines;
- License suspension or restriction;
- Loss of driver’s license;
- Probation;
- Prison time;
- Community service;
- Mandated drunk driving courses;
- Increased insurance rates; and
- The inability to work at a job that requires driving a vehicle.
If other crimes are involved in connection to the instance of drunk driving, it will nearly always result in a harsher punishment. An example of this would be how if someone was seriously injured or died due to the actions of a drunk driver, there is a high probability that they will receive jail time. Additionally, if the person has prior drunk driving offenses on their record, they will generally be required to pay larger criminal fines.
Do I Need A Lawyer For Help With Open Container Violations?
Open container violations can result in citations, and in some cases, misdemeanor charges. You should consult with a DUI/DWI lawyer if you are facing charges for an open container violation.
Your attorney can help you understand your legal rights and options according to your state’s specific laws, and will also be able to represent you in court, as needed.
