Virginia Temporarily Legalizes Carry-Out Alcohol, but Open Container Laws Still Apply

Effective April 10, 2020, Virginia law has been temporarily relaxed to allow restaurants and distilleries with mixed-drink licenses to offer delivery and take-out beverages, which was previously prohibited.  The move is intended to help restaurants whose revenue depends largely on alcohol sales.

However, the Virginia Alcoholic Beverage Control Authority (ABC) has clarified that the following limitations apply:

  • Distillery licensees are limited to a maximum of two mixed drinks per delivery or takeout order that contain 1½ ounces or less of spirits per drink.
     
  • Mixed beverage restaurants and limited mixed beverage restaurants are limited to four cocktails for each delivery or take out sale. Each order for delivery or takeout of cocktails must include a meal for every two cocktails purchased.
     
  • Cocktails shall be packaged in a glass, paper or plastic container (or similar disposable container) or in a single original metal can with a secure lid or cap designed to prevent consumption without removal of the lid or cap (lids with sipping holes or openings for straws are prohibited).
     
  • All recipients of delivery orders must be at least 21 years of age.

In addition, this change in ABC policy does not mean that the carrying of open containers of alcohol is now legal in Virginia.  Under Virginia Code § 18.2-323.1, it is illegal to drink an alcoholic beverage while driving on any public roadway.  There is also a rebuttable presumption that an alcoholic beverage was consumed by the driver if an “open container” that has been partially consumed is located within the passenger area of the car and the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver may be associated with drinking.  This offense is a Class 4 misdemeanor, which is punishable by a fine of up to $250. More importantly, a conviction for violating Virginia’s open container statute results in a permanent criminal record.

So even while ABC laws are temporarily relaxed to help restaurants, it is still illegal in Virginia to carry alcohol in an open container in a car, such as a plastic cup with a straw.   

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