Colorado law makes it a class A traffic infraction to consume (or to have open containers of) alcohol or marijuana in the passenger compartment of a vehicle while on public roads. Penalties include a $50 fine plus a surcharge of $16 for alcohol or $7.80 for marijuana. Drivers found to be intoxicated could face criminal DUI charges as well.
In this article, our Denver Colorado criminal defense lawyers will address:
- 1. What is driving with an open container in Colorado?
- 2. What are the exceptions?
- 3. How does the prosecutor prove I am guilty?
- 4. What are the penalties for an open container?
- 5. Can you walk with an open container in Colorado?
- 6. Related Offenses
Driving with an open container is when people in the passenger area of a motor vehicle on a public road knowingly consume alcohol or marijuana or have open containers of alcohol or marijuana in their possession. Consumption of alcohol or marijuana while in the vehicle is illegal even if the person is not driving or impaired.
CRS 42-4-1305 defines “open alcoholic beverage container” as “a bottle, can, or 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
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 booze was consumed in a legal location, such as a restaurant or at home, the uncorked or unsealed bottle 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.
Meanwhile, CRS 42-4-1305.5 defines an “open marijuana container” as “a bottle, can, or receptacle or marijuana accessory that contains any amount of marijuana and:
- That is open or has a broken seal; or
- The contents of which are partially removed; and
- There is evidence that marijuana has been consumed in the vehicle.”3
Therefore, driving with an open canister of marijuana does not violate Colorado law unless there is evidence that it has been smoked, inhaled, eaten, or otherwise consumed in the car. This is different from open alcohol container laws – a person can be cited even if there is no evidence that any alcohol was drunk. (Learn more about using marijuana or having possession of an open marijuana container (CRS 42-4-1305.5))
The “passenger area” is the area of a vehicle designed to seat the driver and passengers. This includes any area readily accessible to the driver or passenger, including the front seat, back seat, glove compartment, under the seat, side door compartments, or seat-back pockets.
There are a number of exceptions to Colorado open 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
- Possession in a contained area not normally occupied by a passenger, such as behind the last rear seat of a pickup truck
However, many taxi and bus companies prohibit drinking in their vehicles. And it is always unlawful to consume marijuana outside a private residence, so people caught with marijuana in a taxi or bus could face possession charges.
Possession of open containers of alcohol or marijuana in vehicles 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 the defendant is guilty by a preponderance of the evidence. Specifically, prosecutors have to show that:
- The defendant was in the passenger area of a motor vehicle;
- The car was on a public highway or the right-of-way of a public highway in Colorado;
- The defendant drank an alcoholic beverage, consumed marijuana, or possessed an open alcoholic beverage or marijuana container; and
- There was evidence of consumption (only in marijuana cases).
Consuming or having an open alcohol or marijuana container in a vehicle is a class A traffic infraction in Colorado, carrying a $50 fine. There is a $16 surcharge in alcohol cases, and a $7.80 surcharge in marijuana cases.4
Note that police typically suspect that drivers found with open containers are also driving under the influence, even if the police did not personally witness the driver smoking weed or drinking alcohol. During a DUI investigation, police may ask the driver to perform field sobriety tests and blow into a breathalyzer. Unlike open container violations, DUI is a crime carrying serious penalties including a driver’s license suspension.
Walking with open containers of alcohol is largely illegal in Colorado, but there are exceptions carved out by local law. It is always illegal to walk with an open container of any amount of marijuana.
Some cities are passing common consumption ordinances, which allow people to gather in certain areas and drink alcohol from cups that came from different, nearby establishments. People should check their local laws for the latest development on if and where public drinking is allowed.5
See our related article, Can you get an open container in Colorado while walking?
Drunk driving or drugged driving is a criminal offense under CRS 42-4-1301. The penalties for driving under the influence of alcohol or marijuana include jail time, fines, a suspended license, and increased insurance costs. Colorado DUI and open container crimes are separate offenses.
In Colorado, it is a petty offense for anyone under 21 to possess or consume an alcoholic beverage. 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.
Arrested in California? Go to our article on California laws for driving with unsealed alcoholic beverages.
Arrested in Nevada? Go to our article on Nevada laws for driving with unsealed alcoholic beverages.
- CRS 42-4-1305. See, e.g., People v. Taylor, (2020) COA 79, 467 P.3d 1272.
- 23 C.F.R. 1270.3(a)
- CRS 42-4-1305.5; People v. Hill, (1996) 929 P.2d 735.
- CRS 42-4-1305; CRS 42-4-1305.5; CRS 42-4-1701.
- Conrad Swanson, Alcohol in public, sort of. Denver to allow common liquor consumption areas, Denver Post (April 7, 2021); Scott Miller, No more walking and drinking in Vail Village, Vail Daily ().