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Can you get a DUI for driving with an open container?

On Behalf of | Aug 4, 2022 | DUI

Virginia has no laws that specifically prohibit having open containers of alcohol in your vehicle. Instead, the language of the law reads as follows: “It is unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of the Commonwealth.”

However, the lack of a formal open container law does not mean you won’t face legal consequences if a traffic stop occurs. The law also says that driving with an open container can create the rebuttable presumption of a driver’s intoxication.

How do officers establish the presumption of drunk driving?

The mere presence of an open container is not sufficient evidence to charge someone with DUI. Police officers look at several elements to see if their suspicion of drunk driving is warranted.

Where the container is located is important. If the container is in the passenger area, police officers may have a right to investigate further. As defined by statute, the passenger area includes anything within reach of the driver, such as:

  • The driver’s seat
  • The seat beside the driver
  • An unlocked glove compartment
  • The space under the passenger and driver seats

Even if the open container is within a driver’s reach, the police must take steps to confirm possible intoxication.

After the officers notice an open alcohol container, they must look for signs of intoxication. The first thing that officers usually do is see how much (if any) alcohol is missing from the container. Next, they will check for:

  • Alcohol odor
  • Slurred speech
  • Conduct during the stop
  • Appearance and demeanor

You could face an alcohol-related arrest for driving with an open container, even if you were sober. Having experienced legal guidance can help you successfully dispute the presumption of driving while intoxicated.

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