It is against the law for anyone—driver or passenger—to drink an alcoholic beverage while in a motor vehicle on a public road.1 This is one of California's “open container” laws.
Fortunately, this crime does not carry the same serious penalties or stigma as a California DUI conviction.
The legal definition of consuming alcohol in a motor vehicle
The “elements” of the crime of drinking in a vehicle under California Vehicle Code 23221 VC are:
- Either a passenger or a driver drank an alcoholic beverage,
- In a motor vehicle,
- On a “highway.”2
Example: Sarah has some friends over to her house to share a bottle of wine before they all go out to dinner. Sarah is the “designated driver” and does not want to be arrested for California DUI, so she does not have any of the wine.
When it is time to leave for their dinner reservation, Sarah's friends are still not done with their wine. So they all bring their glasses into the car with them to finish them on the way to the restaurant.
If they are pulled over by a police officer, all of Sarah's friends—but not Sarah—could be arrested for drinking alcohol in a motor vehicle.
A “motor vehicle” means any vehicle that is self-propelled.3
However, California's law against drinking in a motor vehicle does NOT apply to passengers in buses, taxis and limousines that carry passengers for hire and are licensed to do so—the classic examples being “party buses” and rented limousines.4
A “highway” doesn't mean only limited access freeways. It means any road or other place that is publicly maintained and open to the public for purposes of vehicular travel.5
Example: Andy owns a very large luxury “dude ranch.” Several paved roads run through his ranch; Andy maintains them at his own expense, and they are not open to the public.
Andy and the ranch employees often drive guests on these roads to get them from one part of the ranch to the other. The guests often drink alcohol on these rides, and the drivers sometimes do as well.
But none of them are guilty of violating Vehicle Code 23221 VC as long as they only drink on the ranch's roads—because the ranch's roads aren't public and so don't qualify as “highways.”
Vehicle Code 23221 VC penalties
Vehicle Code 23221 VC is an infraction in California law.6
This means that the only penalty for drinking alcohol in a car or other motor vehicle is a fine of up to two hundred fifty dollars ($250).7
But according to Beverly Hills criminal and DUI defense attorney John Murray8:
“Drinking in a motor vehicle may not be a very serious offense for people 21 and older—but for minors, it's a different story. Some related sections of the California Vehicle Code provide for more significant penalties for people under the legal drinking age who are caught drinking in a car.”
For instance, any person under the age of twenty-one (21) who knowingly drives a car that contains an alcoholic beverage (even if no one is drinking it) can be charged under Vehicle Code 23224 VC, another California “open container” law—unless s/he is accompanied by or acting at the direction of a parent or responsible adult relative, or is transporting the beverage for work.9
The same is true of any underage passenger in a motor vehicle who knowingly possesses or controls an alcoholic beverage.10
This offense is a California misdemeanor and carries a potential county jail sentence of up to six (6) months and/or a fine of up to one thousand dollars ($1,000).11
Also, drivers under 21 who are caught drinking in their vehicles may be subject to California's very harsh DUI penalties for people under 21—which include a one (1)-year driver's license suspension—if they have any detectable alcohol in their system.12
Even though the penalties for consuming alcoholic beverages in a motor vehicle are relatively mild, it may still make sense to fight VC 23221 charges that are brought against you unfairly.
Common legal defenses to this crime include insufficient evidence—a law enforcement officer may claim s/he saw you drink an alcoholic beverage in a vehicle, but s/he could easily have been wrong or be lying.
You may also be able to avoid a conviction for drinking in a motor vehicle by showing that you were not on a public highway when you drank, or that the vehicle actually was a for-hire vehicle that falls within the exception for limos, taxis, etc.
Call us for help…
For questions about the crime of Vehicle Code 23221 VC drinking alcohol in a motor vehicle, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on Nevada “open container” laws, please see our page on Nevada “open container” laws.
1 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.”)
3 Vehicle Code 415 VC – Motor vehicle. (“(a) A “motor vehicle” is a vehicle that is self-propelled.”)
4 Vehicle Code 23229 VC – Possession of alcoholic beverage in for-hire vehicles; exceptions. (“(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.”)
5 Vehicle Code 360 VC – Highway [as used in California's law against drinking alcohol in a vehicle]. (““Highway” is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.”)
6 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 [including Vehicle Code 23221's rule against drinking alcohol in a motor vehicle].”)
7 Penal Code 19.8 PC – Infractions; classification of offenses; fines; effect of conviction. (“(b) Except in cases where a different punishment is prescribed, every offense declared to be an infraction [including consumption of alcohol in a car] is punishable by a fine not exceeding two hundred fifty dollars ($250).”)
8 Beverly Hills criminal and DUI defense attorney John Murray has earned a statewide reputation for representing clients in both criminal court and DMV hearings throughout Los Angeles and Ventura counties. He is a nationally-recognized expert on California DUI law and the California Vehicle Code.
9 Vehicle Code 23224 VC – Possession of alcoholic beverage in vehicle; persons under 21; penalties [compare to penalties for VC 23221 consuming alcohol in a motor vehicle]. (“(a) No person under the age of 21 years shall knowingly drive any motor vehicle carrying any alcoholic beverage, 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, 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.”)
12 Vehicle Code 23136 VC – Blood alcohol concentration of .01 or greater; implied consent to testing; failure to submit to or complete testing [compare to law against drinking alcohol in a motor vehicle for people 21 and over]. (“(a) Notwithstanding Sections 23152 and 23153, it is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle. However, this section shall not be a bar to prosecution under Section 23152 or 23153 or any other provision of law.”)