Unlike many other states, Virginia does not have a law that expressly prohibits passengers in a vehicle from having an open container of alcohol. However, if an open container is found in your vehicle and you are driving, you may face severe consequences under Virginia’s open container law.
Virginia’s Open Container Law
Virginia’s open container law applies to the driver of the vehicle and not the passengers. Under Virginia Code § 18.2-323.1, it is illegal to consume alcohol while driving a motor vehicle. There is a rebuttable presumption that the driver was consuming alcohol if there is an open container in his automobile. An open container is defined as one without the original factory seal. The presumption arises if these three conditions are met:
- An open container is located in the passenger area.
- At least some of the alcohol in the container has been removed.
- The driver’s speech, other physical characteristics, appearance, conduct, or odor of alcohol can be reasonably associated with the consumption of alcohol by him.
The passenger area of the vehicle is broadly defined to include the following:
- Area where the driver sits in a vehicle
- Any area within reach of the driver, including an unlocked glove compartment
- Areas designed for passengers to sit in
However, it does not include a motor vehicle’s trunk or the area behind the last upright seat in a van, station wagon, or SUV.
Although Virginia's open container law applies specifically to drivers and not passengers, allowing any passenger to consume alcohol or carry an open container of alcohol significantly raises your risk of facing an open container charge. The safest way to reduce your risk of facing this charge is to simply never have an open container in the passenger area of your car while driving.
Penalties Under Virginia’s Open Container Law
Violation of the open container law is a Class 4 misdemeanor offense. If convicted, you may face a $250 fine but will not be sentenced to jail. In addition, you may also face a separate DUI charge if there is evidence of driving under the influence of alcohol or drugs, or while intoxicated.
Even though the fine upon conviction is relatively small, it would be a mistake to just plead guilty if charged with this offense. Doing so would result in a permanent criminal record that may affect many areas of your life, such as your career, immigration status, security clearance, and ability to obtain a loan. You need the assistance of an experienced DUI attorney in Fairfax to build a strong defense so that the charges are dismissed or reduced to a less serious offense. To learn how our skilled lawyers can help, call our office or start an online chat to schedule a free consultation.