North Carolina Criminal Law § 20-138.7(a1): Possession of Open Container in Passenger Area

1. The Defendant was in the passenger area of a vehicle; and,
2. The Vehicle was on a highway or public street within the jurisdiction of the Court; and,
3. An open alcoholic beverage was in the passenger area.

To be considered as an “open” container in North Carolina, the seal of the alcoholic beverage must be broken. In “open container” may also include beverages contained other than in the original manufacturer’s packaging.

The “passenger area” is defined as the area in a vehicle designated to seat the driver and/or passenger, which includes the glove department. There is a separate legal offense in North Carolina if the driver of a vehicle has possession of an open container subject to N.C.G.S. 20-138.7(a).

Violation of the NC open container laws by the driver with alcohol in their system or while consuming alcohol is a misdemeanor criminal charge. It is also deemed a moving violation subject to N.C.G.S. Chapter 20-16(c).

Open container by a passenger is deemed a lesser included offense of N.C.G.S. 20-138.7(a).

There are few exceptions to having an open container in allowed in North Carolina, such as “vehicles for hire” or a limousine, as well as recreational vehicles or motor homes.

The Defendant is stopped by a Law Enforcement Officer for speeding on I-77 south in Mecklenburg County. When the officer approaches the vehicle, there is an empty beer can in the cup holder. The Defendant tells the officer that he did not consume any beer before driving and that the can is actually trash from two days prior. The Officer confirms that the Defendant was not drinking by using a Portable Breath Test (PBT), sometimes referred to as a “breathalyzer.” In addition to a speeding ticket, the Defendant may be cited with Possessing an Open Container in Passenger area.

The Defendant is stopped for not wearing a seatbelt by a State Trooper in Gaston County. The Trooper approaches the Defendant to ask for his license and registration, and can see a mini bottle on the floorboard. The Trooper asks the Defendant if it’s an opened bottle. The Defendant confirms the top has been opened but states, “I just cracked it. I haven’t taken a sip. I’m trying to get over a hangover. I had some last night.” In addition to being cited for failing to wear a seat belt, the Defendant may possibly be cited with Possessing an Open Container in Passenger area, a misdemeanor criminal charge if the State can prove the driver was either drinking from the open container or still had alcohol remaining in his system from prior consumption.

1. What’s the difference between DWI and DUI?
2. NCGS § 20-138.7 - NC Open Container Laws
3. North Carolina Criminal Law 18B-302: Consume Alcohol by a Person Age 19/20
4. The North Carolina DWI Quick Reference Guide
5. Guidebook to Navigating the DWI DUI Legal System in North Carolina
6. North Carolina Criminal Laws BLOG

Part of what defense lawyers do involves determining the most appropriate defense for your case. Each case is different. Possession of an open container can be subject to some level of dispute, particularly if there is more than one person in the vehicle. In part because the open container law in North Carolina has different “versions” or types of offenses, depending upon if you are driver with an open container or just a passenger with an open container in a vehicle. Proof that the accused did not possess an open container or when “constructive possession” is at issue may serve as a valid defense to criminal charges and/or false accusations.

A violation of NCGS 20-138.7(a1) is an infraction, meaning it is not considered a criminal offense or punishable by imprisonment (jail or prison). However, there are penalties if you are found responsible for violation this statute such as a maximum fine of $100. NCDMV - the North Carolina Division of Motor Vehicles may also suspend your North Carolina Driver’s License (NCDL) for a second or third violation.

As a lesser include offense, open container violations may be elevated to a misdemeanor criminal charge in North Carolina if the driver has possession of an open container while alcohol is present in their body. See NCGS § 20-138.7(a).

If you have received a citation for Possessing an Open Container in the Passenger Area, you should contact a criminal defense attorney. While often an infraction, there can be unforeseen negative consequences if found “responsible” to the allegations.

Powers Law Firm PA offers a free consultation for criminal charges in NC including DWI charges in Charlotte-Mecklenburg, Iredell County, Union County, Gaston County, Rowan County, and surrounding areas.

CALL NOW: 704-342-4357

• Open Container Laws