In Colorado, driving with an open container of alcohol while in a motor vehicle is a traffic infraction under CRS 42-4-1305. There are a few exceptions where an individual can use or possess an open container of alcohol in a motor vehicle. However, if the driver is under the influence of alcohol, they could face criminal DUI charges. In this article, our Colorado criminal defense lawyers will address:
- 1. What is driving with an open container of alcohol in Colorado?
- 2. What are the exceptions to the open alcohol container law?
- 3. How does the prosecutor prove I am guilty of possession of an open container of alcohol?
- 4. What are the penalties for an open container of alcohol?
- 5. Related Offenses
Under CRS 42-4-1305, it is a violation for a person in the passenger area of a motor vehicle on a public highway to knowingly consume alcohol or have an open alcoholic beverage container in their possession. In Colorado, an open container violation will result in a fine.
An “open alcoholic beverage container” is defined as, “a bottle, can, or other receptacle that contains any amount of alcoholic beverage and:
- That is open or has a broken seal; or
- The contents of which are partially removed.”1
The “passenger area” is the area of a vehicle designed to seat the driver and passengers while the vehicle is in operation. This includes any area readily accessible to the driver or passenger, including the glove compartment, under the seat, side door compartments, or seat-back pockets.
An alcoholic beverage includes beer, cider, malt liquor, sake, wine, distilled spirits, or similar fermented beverages containing 0.05% alcohol or more by volume.2 Even if the alcohol was consumed in a legal location, such as a restaurant or at home, the open container cannot be transported in the passenger area of the vehicle. An open alcohol container should be stored in an inaccessible area, such as the trunk of a car.
There are a number of exceptions to the open alcoholic beverage container laws. Specifically, the penalties do not apply to:
- Passengers in a vehicle used for transportation for compensation, such as a taxi or bus;
- Possession in the living quarters of a motor home, house coach, or house trailer; or
- Contained in an area behind the rear seat or area not normally occupied by a passenger or vehicle not equipped with a trunk, such as a pickup truck.
An open alcohol container may not result in a ticket on a taxi or bus. However, many taxi and bus companies have a prohibition or restriction on consuming alcohol on board.
Possession of an open container of alcohol is not a criminal offense in Colorado. Instead, it is a traffic infraction, punishable by a simple fine. Traffic infractions have a lower burden of proof compared to criminal charges. The prosecutor only has to prove that you are guilty by a preponderance of the evidence. In order for the prosecutor to prove you violated the law against possession of an open container of alcohol, they have to prove that you were:
- In the passenger area of a motor vehicle;
- On a public highway or the right-of-way of a public highway of Colorado;
- Drank an alcoholic beverage; or
- Had in your possession an open alcoholic beverage container.
A person who violates CRS 42-4-1305, driving with an open alcoholic beverage container, commits a class A traffic infraction. The penalties include a fine of $50 and a surcharge of $16.3
A passenger in a vehicle may only face a traffic infraction; however, if the driver is drinking alcohol, they may face criminal charges. An open container of alcohol in the car can give the police probable cause to believe the driver may have been drinking alcohol, leading to an arrest on suspicion of DUI. Even if the driver is under the legal limit, they may lose their license and have to deal with clearing up a DUI arrest or fight criminal drunk driving charges.
Driving with an open container of alcohol may be related to other traffic violations or criminal offenses. A minor under the age of 21 in possession of alcohol may face a petty offense. Increasingly in Colorado, drivers and passengers are ticketed for driving with an open container of marijuana in the vehicle. If the driver is suspected of operating while under the influence of alcohol or drugs, they may be arrested for a DUI and lose their license.
Under CRS 42-4-1305.5, using marijuana or having an open container of marijuana in one's possession while in a motor vehicle is a traffic infraction. However, because marijuana is generally packaged differently than alcohol, there is also a requirement that there is evidence marijuana was consumed within the vehicle. Penalties for having an open container of marijuana include a fine of $50 and a surcharge of $7.80.
In Colorado, it is a petty offense for anyone under 21 to possess or consume alcohol or be in possession of alcohol. A first offense can result in a fine of up to $100 and require completion of a substance abuse education program approved by the state. A second or subsequent offense can result in increased penalties.
Operating a motor vehicle while impaired by alcohol or drugs, is a criminal offense under CRS 42-4-1301. The penalties for driving under the influence of alcohol include jail time, fines, a suspended license, and increased insurance costs.
Call us for help...
If you were ticketed for driving with an open container or are facing a criminal charge for driving under the influence of alcohol, please contact us at Colorado Legal Defense Group. Our caring Colorado defense attorneys have many years of experience representing clients who have been charged with motor vehicle violations and criminal offenses. We are among the best Colorado criminal defense attorneys to call. Contact us today for a free consultation by phone or in-person or in our Denver law office.
- C.R.S. 42-4-1305(1)(c)
- 23 C.F.R. 1270.3(a)
- C.R.S. 42-4-1305(2)(c)