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Open Container and DWI Law in North Carolina

What happens if you have an open container in your car when you are stopped for a DWI in North Carolina?  It depends on a few of factors.  First, where is the open container located in the car?  Second, has the driver had anything to drink?  And third, who is in possession of the open container?

Under North Carolina law G.S  20-138.7(a), a person may not drive a vehicle

(1) While there is an alcoholic beverage in the passenger area in other than the unopened manufacturer's original container; and

(2) While the driver is consuming alcohol or while alcohol remains in the driver's body.

G.S. 20-138.7(a)(1) provides an additional offense that

No person shall possess an alcoholic beverage other than in the unopened manufacturer's original container, or consume an alcoholic beverage, in the passenger area of a motor vehicle while the motor vehicle is on a highway or the right-of-way of a highway. For purposes of this subsection, only the person who possesses or consumes an alcoholic beverage in violation of this subsection shall be charged with this offense.

Let’s suppose Roger is driving home one night from work.  He was working late and is tired and not paying complete attention to his driving.  Not far from his house, Roger is lawfully stopped by a police officer.  Roger is not what you would call a neat freak, and he still has the remnants of last weekend’s fun times on the floor of the back seat of his car.  When the police officer walks up to the driver’s window, he spots some beer bottles still partially filled with beer in the back seat.  Is Roger guilty of transporting an open container?

Well, Roger has an open alcoholic beverage in the passenger area of the car, but we assume he has no alcohol in his system since he is coming directly from work.  It’s true that Roger would not be guilty of the first offense in the transporting open container law.  Unfortunately for Roger there is no one else in his car who could be in possession of the open container, so Roger is in possession of the partially filled beer bottles and guilty of the second offense provided in G.S. 20-138.7(a)(1).

Let’s change the facts and suppose that Roger is now driving an SUV and has the partially filled beer bottles in the back of the SUV behind the last row of passenger seating.  In this scenario, Roger would not be guilty of transporting an open container because the beer bottles are no longer in the “passenger area” of the car.  Under North Carolina law, the “passenger area” of the car means:

“the area designed to seat the driver and passengers and any area within the reach of a seated driver or passenger, including the glove compartment. The area of the trunk or the area behind the last upright back seat of a station wagon, hatchback, or similar vehicle shall not be considered part of the passenger area.”

So, if in the initial hypothetical, Roger noticed the beer bottles in the back seat of the car before the police officer spotted them in the back seat and tried to put them instead in the glove compartment of the car, he would still be guilty of transporting an open container.

Okay, one more time, let’s change the facts and say this time Roger is driving home from work in his SUV and picks up some friends to head out for the night.  His friend Pete hops in the front seat and his friend Ted hops in the way back of the SUV since Roger’s back seat is still a mess, although there are no beer bottles this time.  Both Pete and Ted have brought open cans of beer with them that they are sipping on, gearing up for a big night out.  This time when the police officer lawfully stops Roger, Roger is not guilty of transporting an open container since Roger is not in possession of either of the open cans of beer and does not have any alcohol in his system.  Pete, in the front seat, is in possession of an open beer can and is seated in the passenger area of the car, so he is guilty of transporting an open container.  Ted, in the way back of the SUV, on the other hand, is not guilty of transporting an open container, since although he is in possession of an open beer can, he is not seated in the passenger area of the SUV.

It is important to note that in this revised scenario, if Roger did have alcohol in his system, he would be guilty of transporting an open container.  The first part of the law does not require possession of the open container by the driver.  The open container merely has to be in the passenger area of the car if the driver has any alcohol in his system.

An exception to the transporting an open container law is when the open container is:

(1) In the passenger area of a motor vehicle that is designed, maintained, or used primarily for the transportation of persons for compensation;

(2) In the living quarters of a motor home or house car as defined in G.S. 20-4.01(27)d2.; or

(3) In a house trailer as defined in G.S. 20-4.01(14).

So if Roger had hired a limousine to pick up his friends Pete and Ted for their night out, none of the guys would be guilty of transporting an open container.

Transporting an open container as a driver with alcohol in your system is a Class 3 Misdemeanor for the first offense and a Class 2 Misdemeanor for a second offense.  You can be convicted of both transporting an open container and DWI, but the punishment for transporting an open container cannot be added onto the punishment for DWI to exceed the maximum allowed punishment for DWI.

To prove that a driver has alcohol in his system, the law says that the smell of alcohol on the driver’s breath is not sufficient evidence unless the driver refuses an alcohol screening test.  So in our very first example, let’s suppose that on his way out of the office, Roger’s coworker gave him a small sip of whiskey in appreciation of Roger’s full day of work.  When the police officer stops Roger and notices the partially filled beer bottles in the back seat of Roger’s car, he also smells the whiskey on Roger’s breath.  If Roger refuses a Breathalyzer, the police officer can use the smell of Roger’s breath to prove that Roger has alcohol in his system.   In contrast, under DWI law, the mere smell of alcohol on his breath is not  sufficient proof of Roger’s impairment, even if Roger refuses a Breathalyzer.  Under the DWI law, if Roger refuses a Breathalyzer, his impairment must be proven through other evidence, such as a blood test for which a warrant is typically required.

Transporting an open container as a driver without alcohol in your system or as a passenger is an infraction.  Under North Carolina law, “An infraction is a noncriminal violation of law not punishable by imprisonment. Unless otherwise provided by law, the sanction for a person found responsible for an infraction is a penalty of not more than one hundred dollars ($100.00).”

Similar to a DWI, a driver whose license is revoked because of transporting an open container can apply for a limited driving privilege.  This means that Roger can still drive himself to work during normal working hours (6 a.m. to 8 p.m.), but if he plans on having any more late nights at work, he’ll have to run that by a judge.

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