The general Texas Open Container law is in Texas Penal Code Section 49.031. TPC 49.031 is not
technically a DWI enhancement. Rather, it is a separate offense that’s punishable by a fine of up to $500. It is generally handled like a traffic ticket as opposed to an arrestable offense. In fact, the Texas Transportation Code forbids an officer from making a custodial arrest for Open Container if a citation can be issued.
Open Container citations are usually filed in a different court than a DWI. Since the Open Container charge is punishable by fine only, these charges are typically handled in municipal courts or Justice of the Peace courts much like traffic tickets.
There is a separate provision in TPV 49.04(c) that enhances the penalty for a Class B misdemeanor DWI if an open container is found in the driver’s immediate possession. In these cases, the minimum jail time allowed in the event of a jail sentence is increased from 72 hours to six days. This minimum is not required as a condition of community supervision, however the minimum probated sentence would have to be at least six days.
Passengers can also be charged with open container violations. Although it’s not as bad as a DWI, such violations are alcohol-related infractions that can have serious personal or professional consequences.
What is an Open Container?
There’s a big difference between an open container and an empty container. An empty bottle may be circumstantial evidence of alcohol consumption, but it’s not an “open container” under 49.031.
To qualify under the law, the bottle or other container must either have a broken seal or be partially empty. If the officer issues a citation based on an empty bottle, an attorney can probably get that citation thrown out of court.
Knowledge and Possession
In addition to attacking technical aspects of the law, it’s also possible to challenge these citations based on their merits.
The can, bottle, or other container must be easily accessible. It must be on the seat or on the floor in the passenger area. It cannot be in the trunk area (behind the back seat) or in a locked glove box.
Furthermore, the defendant must know where the container was and also know that it contained alcohol. That’s often an issue in passenger cases. Sometimes, if one person has a beer bottle, the officer will issue citations to everyone in the car. These citations usually do not hold up in court.
Finally, possession means more than proximity. Once again, the passenger dragnet is a good example. Passengers in a car cannot be simply charged with possessing anything found inside the car without further evidence of knowledge, care, custody, or control of the presence of the contraband.
Team Up with an Assertive Harris County Lawyer
Do not take open container violations lightly. For a free consultation with an experienced criminal defense attorney in Houston, contact the Law Office of Jim Medley.