California open container laws make it illegal for motorists to possess an alcoholic beverage that has been opened or the seal broken, even if the alcohol is not actually being consumed.
This offense is typically an infraction, punishable by a maximum $250 fine. 1 2 However, if you are a driver or passenger under 21 and are caught violating this law, you face a misdemeanor, punishable by up to six months in jail and a maximum $1,000 fine.3
The good news is that there are a variety of legal defenses to this charge. These include (but are not limited to):
- the alcohol was in the trunk,
- you were in a “hired” car, such as a taxi, bus or limousine,
- there was no probable probable cause for the police to stop you, or
- the police only discovered your open container because they performed an illegal search and seizure.
In this article, our California criminal defense attorneys4 will address the following:
- 1. What is California law as to driving with an open container of alcohol?
- 2. Is it possible to fight the ticket in court?
- 3. Are these criminal offenses or infractions?
- 4. Related Offenses
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
It is illegal for a person to drive with an alcoholic beverage in the vehicle that has been opened
1. What is California law as to driving with an open container of alcohol?
There are a variety of California laws that all essentially prohibit the same conduct: driving (or riding in) a car with an open bottle, can or other receptacle containing an alcoholic beverage. These laws are codified in
- Vehicle Code 23221 VC – drinking in a car,
- Vehicle Code 23222(a) VC – possessing an open container in a car,
- Vehicle Code 23224 VC – possession of an open container in a car by a person under 21,
- Vehicle Code 23225 VC – storing open containers in a trunk,
- Vehicle Code 23226 VC – storing open containers in the passenger compartment,
- Vehicle Code 23229 VC – exceptions for in-hire vehicles, and
- Vehicle Code 23229.1 VC – prohibition of in-hire vehicles from storing alcohol when transporting persons under 21.
The word “open” doesn’t literally mean that there is no top on the beverage, but rather that the beverage has
- been opened,
- a broken seal, or
- been partially or entirely consumed.
As Orange County criminal defense attorney John Murray5 explains:
“This is the case whether or not you…or anyone else in the car…is actually drinking the beverage. Just having the open container in the car is illegal in and of itself…and the reason we refer to these laws as California’s open container laws.”
But before you can be convicted of this offense, the prosecutor must prove that you possessed the open container. This means that if, for example, you are one of five passengers in a car, you can’t be convicted of violating California’s open container law unless the prosecutor can prove that the container was either on your person or under your control. In other words, it has to be connected to you, not just to the car.6
And if you actually consume the alcoholic beverage while riding in or driving the car, you will be cited under California Vehicle Code 23221 VC, which is an infraction…and possibly for driving under the influence as well (described below in Section 4.1.).7
1.1. Regarding minors: Vehicle Code 23224 VC
If you are under 21…the legal age for drinking alcoholic beverages in California…Vehicle Code 23224 VC, California’s law on underage possession of alcohol in a vehicle law, prohibits you from
- driving a car knowing that it contains any alcoholic beverage (whether opened or unopened), or
- being a passenger in a car and knowingly possessing an alcoholic beverage (again, regardless of whether it is opened or unopened).
However, if you…as either the underage driver or the underage passenger…were
- accompanied by a parent or guardian,
- were following reasonable directions from a parent or guardian about what to do with the alcohol, or
- were driving or riding as a passenger in a car and you were transporting the alcohol pursuant to the course and scope of your lawful employment,
then those facts will serve as a valid legal defense to the charge.
If these defenses do not apply to your particular case…and you are the registered owner of the car…your car will be impounded for anywhere from one to thirty days.
And all violations of this section subject an offender to
- a California misdemeanor, punishable by up to six months in jail and a maximum $1,000 fine, and
- a driver’s license suspension for one-year (or a one-year delay in obtaining your license if you do not already have a driver’s license).8
2. Is it possible to fight the ticket in court?
There are a variety of California legal defenses that a skilled criminal defense attorney can present on your behalf – some that are specific to this charge and some that are more general. A sample of the most common follow.
2.1. The alcohol was in the trunk of the car
If you were driving with an open container in the trunk of the car, you are not guilty of violating California’s open container laws – period. And if there is no trunk in the car, but the open container was
- in an area of the car that is not normally occupied by people…perhaps in the bed of a pickup truck, or
- in a locked container,
you should be acquitted of this offense.9
2.2. The alcohol was in a bus, taxi, limousine, “housecar” or camper
Passengers in or drivers of a bus, taxi, limousine, “housecar” or camper are exempt from prosecution under California’s open container laws for possessing an open container. Passengers in such vehicles are permitted to drink – drivers are not.10
However, if there are minors under 21 in one of these vehicles, California’s open container laws apply, and open containers will not be permitted to be inside these vehicles without being properly stored as indicated above. The exception lies with limousines, as alcohol may be locked in these cars in an area that is normally occupied by passengers.11
2.3. The officer didn’t have probable cause to investigate you
Even if you did drive with or possess an open alcoholic beverage in violation of California’s open container laws, your charge should be dismissed if the officer who discovered the open container did so without probable cause.
Probable cause under California law means a reasonable belief that a crime is or was taking place. Probable cause is the government’s way of assuring the public that officers can’t simply stop anyone they wish at any time they wish. Before the police can stop you, they must be able to point to “specific articulable facts” that validate their belief that you are or were engaged in a crime.
If, for example, you were speeding or ran a stop sign, the police would be entitled to pull you over. If, at that point, they notice an open container, the charge would be valid. But if the cops pull you over for no legal reason…perhaps they just don’t think you fit the “profile” of the neighborhood…and then discover the open container, the stop would be ripe for a probable cause challenge.
Example: The defendant and a companion are parked in a car in her driveway which is visible from the street. As cops drive by, they see her drinking a beer and approach the vehicle to cite her for VC 23222(a). The police ask the defendant and passenger to exit the car and, after they do, one of the cops spots a jar of PCP.
Because a private driveway does not qualify as a highway or other “lands” as defined under California’s open container law, the police did not have probable cause to approach the car in the first place, as no crime was being committed. As a result, neither the open container nor the PCP were allowed into evidence and, as a result, the charges were dismissed.12
2.4. The open container was discovered during an illegal search and seizure
Similarly, even if you are technically guilty of the violation…but the officers only discover the open container because they violated California’s search and seizure laws, then we should be able to get the charge dismissed for just that reason.
This means that if the police discover the open container
- without probable cause,
- without arresting you for another violation, or
- without your consent to search the car,
then it may be possible to get the evidence excluded and the case dismissed.
A violation of the open container laws can result in a fine
3. Are these criminal offenses or infractions?
California’s open container laws are California infraction charges, which means they do not carry jail time but are only punishable by a maximum $250 fine.13 The exception to this rule applies to underage possession of alcohol…a California misdemeanor offense…whose penalties are noted above under Section 1.1. Regarding minors: Vehicle Code 23224 VC.14
But as insignificant as this may seem, these violations will also likely result in points on your California DMV record and…if charged in connection with a DUI…will probably cause a prosecutor and/or judge to sentence you to a mandatory jail sentence.
Keep in mind that a minor in possession of alcohol also violates California Business & Professions Code 25662. This section is a misdemeanor making it illegal for a minor to be in possession of alcohol in any public place. It is punishable by community service, a fine, and/or a one-year revocation of the minor’s driving privileges.
4. Related Offenses
There are a number of offenses that are closely related to California’s open container laws because they are either charged in connection with or in lieu of these charges. The following are three of the most common:
4.1. Vehicle Code 23152 VC California’s law against driving under the influence
California’s law against driving under the influence prohibits just that…driving under the influence of alcohol (DUI).15 If you are arrested for DUI and have an open container in the car at the time, that fact will serve as an aggravating factor in your DUI sentence.
So, for example, a first-time DUI offender who might not otherwise be required to go to jail may have to serve at least 48 hours if he/she was caught either drinking or carrying an open container of alcohol at the time of the offense.
For further discussion, please see our article on the difference between open container and DUI.
4.2. Penal Code 647(f) PC California’s drunk in public law
You violate California’s drunk in public law when you are so intoxicated that
- you are unable to exercise care for your safety or for the safety of others, or
- you interfere with, obstruct, or prevent others from using streets, sidewalks, or other “public ways.”16
The following is an example of how this charge would come into play with an open container charge.
Example: The LAPD receives a call that a driver is passed out in his car in traffic lanes in downtown L.A. Officers approach the car and find the driver slumped behind the steering wheel with the car lights off, the engine running and a whiskey bottle, nearly empty, on the seat beside him.
Given these facts, the police are justified in arresting the driver for being drunk in public and in citing him for violating California’s open container laws.17
4.3. Vehicle Code 23222(b) California’s law against driving in possession of marijuana
While Vehicle Code 23222(a) prohibits driving in possession of an open container, Vehicle Code 23222(b) specifically prohibits driving in possession of marijuana in California. Considered even less serious than driving with an open container, driving in possession of an ounce or less of marijuana is an infraction, punishable by a maximum $100 fine.18
Call us for help…
Call us for help
For information about Nevada open container laws, go to our article on Nevada open container laws.
Legal References:
- California Vehicle Code 23221 VC–Drinking in motor vehicle upon highway. (“(a) No driver shall drink any alcoholic beverage while in a motor vehicle upon a highway. (b) No passenger shall drink any alcoholic beverage while in a motor vehicle upon a highway.”) See also California Vehicle Code 23222 VC — Possession of open container containing alcoholic beverage or marijuana while driving a motor vehicle; penalty. (“(a) No person shall have in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed. (b) Except as authorized by law, every person who possesses, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, not more than one avoirdupois ounce of marijuana, other than concentrated cannabis as defined by Section 11006.5 of the Health and Safety Code, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).”)See also California Vehicle Code 23223 VC — Possession of opened container in a motor vehicle. (“(a) No driver shall have in his or her possession, while in a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle, containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed. (b) No passenger shall have in his or her possession, while in a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened or a seal broken, or the contents of which have been partially removed.”)See also California Vehicle Code 23224 VC – Possession of alcoholic beverage in vehicle; persons under 21; penalties. (“(a) No person under the age of 21 years shall knowingly drive any motor vehicle carrying any alcoholic beverage [regardless of whether it is an open container or not], unless the person is accompanied by a parent, responsible adult relative, any other adult designated by the parent, or legal guardian for the purpose of transportation of an alcoholic beverage, or is employed by a licensee under the Alcoholic Beverage Control Act (Division 9 (commencing with Section 23000) of the Business and Professions Code), and is driving the motor vehicle during regular hours and in the course of the person’s employment. If the driver was unaccompanied, he or she shall have a complete defense if he or she was following, in a timely manner, the reasonable instructions of his or her parent, legal guardian, responsible adult relative, or adult designee relating to disposition of the alcoholic beverage. (b) No passenger in any motor vehicle who is under the age of 21 years shall knowingly possess or have under that person’s control any alcoholic beverage [regardless of whether it is an open container or not], unless the passenger is accompanied by a parent, legal guardian, responsible adult relative, any other adult designated by the parent, or legal guardian for the purpose of transportation of an alcoholic beverage, or is employed by a licensee under the Alcoholic Beverage Control Act (Division 9 (commencing with Section 23000) of the Business and Professions Code), and possession or control is during regular hours and in the course of the passenger’s employment. If the passenger was unaccompanied, he or she shall have a complete defense if he or she was following, in a timely manner, the reasonable instructions of his or her parent, legal guardian, responsible adult relative or adult designee relating to disposition of the alcoholic beverage. (c) If the vehicle used in any violation of subdivision (a) or (b) is registered to an offender who is under the age of 21 years, the vehicle may be impounded at the owner’s expense for not less than one day nor more than 30 days for each violation. (d) Any person under 21 years of age convicted of a violation of this section is subject to Section 13202.5. (e) Any person convicted for a violation of subdivision (a) or (b) is guilty of a misdemeanor and shall be punished upon conviction by a fine of not more than one thousand dollars ($1,000) or by imprisonment in the county jail for not more than six months, or by both that fine and imprisonment.”)See also Vehicle Code 23225 VC – Storage of opened container. (“(a)(1) It is unlawful for the registered owner of any motor vehicle to keep in a motor vehicle, when the vehicle is upon any highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed, unless the container is kept in the trunk of the vehicle. (2) If the vehicle is not equipped with a trunk and is not an off-highway motor vehicle subject to identification, as defined in Section 38012, the bottle, can, or other receptacle described in paragraph (1) shall be kept in some other area of the vehicle that is not normally occupied by the driver or passengers. For the purposes of this paragraph, a utility compartment or glove compartment shall be deemed to be within the area occupied by the driver and passengers. (3) If the vehicle is not equipped with a trunk and is an off-highway motor vehicle subject to identification, as defined in subdivision (a) of Section 38012, the bottle, can, or other receptacle described in paragraph (1) shall be kept in a locked container. As used in this paragraph, “locked container” means a secure container that is fully enclosed and locked by a padlock, key lock, combination lock, or similar locking device. (b) Subdivision (a) is also applicable to a driver of a motor vehicle if the registered owner is not present in the vehicle. (c) This section shall not apply to the living quarters of a housecar or camper.”)See also California Vehicle Code 23226 VC – Keeping open container in passenger compartment of motor vehicle; exceptions. (“(a) It is unlawful for any driver to keep in the passenger compartment of a motor vehicle, when the vehicle is upon any highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed. (b) It is unlawful for any passenger to keep in the passenger compartment of a motor vehicle, when the vehicle is upon any highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened or a seal broken, or the contents of which have been partially removed. (c) This section shall not apply to the living quarters of a housecar or camper.”)See also California Vehicle Code 23229 VC – Possession of alcoholic beverage in for-hire vehicles; exceptions [to California’s open container laws]. (“(a) Except as provided in Section 23229.1, Sections 23221 and 23223 do not apply to passengers in any bus, taxicab, or limousine for hire licensed to transport passengers pursuant to the Public Utilities Code or proper local authority, or the living quarters of a housecar or camper. (b) Except as provided in Section 23229.1, Section 23225 does not apply to the driver or owner of a bus, taxicab, or limousine for hire licensed to transport passengers pursuant to the Public Utilities Code or proper local authority. (c) This section shall become operative on July 1, 1989.”)See also California Vehicle Code 23229.1 VC – Application of prohibition against possession or storage of opened container to charter-party carrier of passengers while transporting passenger under 21; forwarding record of conviction to public utilities commission. (“(a) Subject to subdivision (b), Sections 23223 and 23225 apply to any charter-party carrier of passengers, as defined in Section 5360 of the Public Utilities Code, operating a limousine for hire when the driver of the vehicle transports any passenger under the age of 21. (b) For purposes of subdivision (a), it is not a violation of Section 23225 for any charter-party carrier of passengers operating a limousine for hire that is licensed pursuant to the Public Utilities Code to keep any bottle, can, or other receptacle containing any alcoholic beverage in a locked utility compartment within the area occupied by the driver and passengers. (c) In addition to the requirements of Section 1803, every clerk of a court in which any driver in subdivision (a) was convicted of a violation of Section 23225 shall prepare within 10 days after conviction, and immediately forward to the Public Utilities Commission at its office in San Francisco, an abstract of the record of the court covering the case in which the person was convicted. If sentencing is not pronounced in conjunction with the conviction, the abstract shall be forwarded to the commission within 10 days after sentencing, and the abstract shall be certified, by the person required to prepare it, to be true and correct. For the purposes of this subdivision, a forfeiture of bail is equivalent to a conviction.”)
- People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4. (“Unless otherwise expressly provided, any Vehicle Code violation is an infraction.”) California’s open container laws are infractions. See also California Vehicle Code 40000.1 VC – Infractions. (“Except as otherwise provided in this article, it is unlawful and constitutes an infraction for any person to violate, or fail to comply with any provision of this code, or any local ordinance adopted pursuant to this code.”) This includes violations of California’s open container laws. See also California Penal Code 19.6 PC – Infractions; punishment; jury trial; right to public defender. (“An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him or her unless he or she is arrested and not released on his or her written promise to appear, his or her own recognizance, or a deposit of bail.”)See also California Penal Code 19.8 PC – Infractions; classification of offenses; fines; effect of conviction.
- See Vehicle Code 23224, California’s open container law as it applies to underage drivers/passengers, endnote 1, above.
- Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- Orange county criminal defense lawyer John Murray represents clients throughout Orange County, including Newport Beach, Santa Ana, Fullerton, Laguna Beach, Irvine, Anaheim and Westminster, as well as in the South Bay (including Long Beach and Torrance).
- People v. Squadere (1978) 88 Cal.App.3d Supp. 1.
- See Vehicle Code 23221 VC – Drinking in motor vehicle upon highway, endnote 1, above.
- See Vehicle Code 23224 VC – Possession of alcoholic beverage in vehicle; persons under 21; penalties, California’s open container laws, endnote 1, above.
- See Vehicle Code 23225 VC – Storage of opened container, endnote 1, above.
- See Vehicle Code 23229 VC – Possession of alcoholic beverage in for-hire vehicles; exceptions to California’s open container laws, endnote 1, above.
- See Vehicle Code 23229.1 VC – Application of prohibition against possession or storage of opened container to charter-party carrier of passengers while transporting passenger under 21; forwarding record of conviction to public utilities commission, endnote 1, above.
- Facts loosely based on People v. Lopez (1987) 197 Cal.App.3d 93.
- See endnote 2, above, regarding violations of California’s open container laws as infractions.
- See Vehicle Code 23224 VC, application of California’s open container laws as they apply to underage drivers/passengers, endnote 1, above.
- Vehicle Code 23152 VC California’s driving under the influence law. (“(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving…”) An offender who suffers a DUI where there is an open container will likely face a mandatory jail sentence.
- California Penal Code 647(f) PC – California’s drunk in public law.
- People v. Kelley (1969) 3 Cal.App.3d 146.
- See Vehicle Code 23222(b), endnote 1, above.