DWI with an Open Container

The penalties for a DWI are increased dramatically if the driver possessed an open container when driving while intoxicated. If it is shown on the trial that the person was DWI with an open container in the driver's immediate possession, then the offense can be charged as a Class B misdemeanor. The penalties are generally the same, except the court must also impose a minimum term of confinement of six days.

For purposes of the driving while intoxicated (DWI) statute in Texas, the term “open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.

In some cases, the prosecutor will agree to drop the allegation that you were in possession of an open container in exchange for a plea so that the enhanced penalties are eliminated. Prosecutors often view an "open container" as extra leverage that can be used during plea negotiations.

If the prosecutor cannot prove the DWI case, the fact that an open container was found does not necessarily matter. Your attorney can still fight for an outright dismissal of the charges before trial or a "not guilty" verdict at trial. 

The attorneys at Law Offices of Richard C. McConathy in Fort Worth represent clients charged with a wide variety of DWI crimes including DWI while in possession of an open container. Call for a free consultation to discuss the charges, the potential penalties, and the best defenses to fight the case.


Possession of an Alcoholic Beverage in a Motor Vehicle in Texas

Under Section 49.031, the crime of Possession of Alcoholic Beverage in Motor Vehicle requires proof beyond all reasonable doubt that a person knowingly possessed an open container in a passenger area of a motor vehicle that was located on a public highway, regardless of whether the vehicle is being operated or was stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.

For purposes of the open container law in Texas, the term "open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.

The term “passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:

  • a glove compartment or similar storage container that is locked;
  • the trunk of a vehicle; or
  • the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.

Under Texas Penal Code Section 49.031(3), the term “public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.


Defenses to the Open Container DWI Accusation

It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:

  • the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or
  • the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.

An offense for being in possession of an open container in a motor vehicle is generally charged as a Class C misdemeanor when a DWI was not committed.

With a DWI charge, a peace officer charging a person with possessing an open container in a motor vehicle can, instead of taking the person before a magistrate, issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.


This article was last updated on Friday, April 21, 2017.

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