1. #1
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    no open container laws in VA?

    My basic question is what are the open container laws in Virginia?

    I found some stuff but wasn’t sure if I was interpreting it correctly. (odds are I’m not)
    The Insurance Institute for Highway Safety has as of March 2007 this chart of state laws related to DUI’s located at http://www.iihs.org/laws/state_laws/dui.html Under the column of open container laws under VA its blank.
    I tried to search through the Virginia Code and was only able to find this
    http://leg1.state.va.us/cgi-bin/legp...cod+18.2-323.1

    which states:
    § 18.2-323.1. Drinking while operating a motor vehicle; possession of open container while operating a motor vehicle and presumption; penalty.
    A. It shall be unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of this Commonwealth.
    B. A rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open container has been at least partially removed and (iii) the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage.
    For the purposes of this section:
    "Open container" means any vessel containing an alcoholic beverage, except the originally sealed manufacturer's container.
    "Passenger area" means the area designed to seat the driver of any motor vehicle, any area within the reach of the driver, including an unlocked glove compartment, and the area designed to seat passengers. This term shall not include the trunk of any passenger vehicle, the area behind the last upright seat of a passenger van, station wagon, hatchback, sport utility vehicle or any similar vehicle, the living quarters of a motor home, or the passenger area of a motor vehicle designed, maintained or used primarily for the transportation of persons for compensation, including a bus, taxi, or limousine, while engaged in the transportation of such persons.
    C. A violation of this section is punishable as a Class 4 misdemeanor.
    (1989, c. 343; 2002, c. 890.)


    So it appears that it’s legal for passengers in a car driving down the highway to crack open a few cold ones and consume them as long as the driver is sober (triple zeros) and everyone is 21 or older. I’m a little surprised. I guess I thought it was illegal to have any open alcohol container in a car anywhere.

  2. #2
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    No open container law in VA.

    Your interpretation of the statute would seem to be correct. Consider though, that the Commonwealth probably has a law against Public Intoxication, which an Officer could probably use if he/she felt it necessary. In all probability, the Public Intoxication charge would not require a chemical or blood test, but would rely solely on the Officer's judgement regarding alleged intoxication. Believe we have one or two Virginia State Troopers on the forum. Maybe they could provide you with additional insights.

  3. #3
    Retired Sergeant - CHP
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    According to this, there is a law against open containers in VA:

    18.2-323.1 - Open Container

    You may be charged with drinking while operating an open container of alcohol if your are stopped by law enforcement and you have an open container of alcohol in the passenger compartment and the contents have been partially removed, and you exhibit signs that you have been drinking. The passenger area means the area designed to seat the driver and passengers and any area within the driver's reach, including an unlocked glove compartment.


    Site source: http://www.police.covington.va.us/DUI_information.htm

    Also, it would appear that the NHTSA is withholding funding for VA until they totally conform to Federal Mandates regarding alcohol and driving.

    Site source:

    http://www.drunkdrivinglawyers.com/r...e/VA/NID/8876/
    Be courteous to all, but intimate with few, and let those few be well tried before you give them your confidence!

    [George Washington (1732 - 1799)]


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    Many cities also have their own ordinances involving alcohol. Case in point, in TN, state law indicates that only the driver cannot have an open container of alcohol in the vehicle, but Metro (Nashville) Davidson County, does not allow any open containers in (or out) of the vehicle on public roads, alleys, garages, etc.
    I'm 10-8 like a shark in a sea of crime..

  5. #5
    Mitch...inappropriate!

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    Quote Originally Posted by SgtScott31 View Post
    Many cities also have their own ordinances involving alcohol. Case in point, in TN, state law indicates that only the driver cannot have an open container of alcohol in the vehicle, but Metro (Nashville) Davidson County, does not allow any open containers in (or out) of the vehicle on public roads, alleys, garages, etc.
    I was going to say the same thing. Many open container laws are local ordinances, and can differ between jurisdictions. Therefore, you wouldn't find it specifically written in the state crimes or vehicle code.
    "The only thing necessary for the triumph of evil is for good men to do nothing." -Edmund Burke

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    This is kind of new on the books but it's there.

    18.2-323.1 Would be the correct state code to chatge under. I just went to court on this last week. You must have the open container, the smell of an alcoholic beverage, and the contents partially removed. The guy had his five year old son in the back seat.

  7. #7
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    Va cop here also

    Quote Originally Posted by itnstalln View Post
    My basic question is what are the open container laws in Virginia?

    I found some stuff but wasn’t sure if I was interpreting it correctly. (odds are I’m not)
    The Insurance Institute for Highway Safety has as of March 2007 this chart of state laws related to DUI’s located at http://www.iihs.org/laws/state_laws/dui.html Under the column of open container laws under VA its blank.
    I tried to search through the Virginia Code and was only able to find this
    http://leg1.state.va.us/cgi-bin/legp...cod+18.2-323.1

    which states:
    § 18.2-323.1. Drinking while operating a motor vehicle; possession of open container while operating a motor vehicle and presumption; penalty.
    A. It shall be unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of this Commonwealth.
    B. A rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open container has been at least partially removed and (iii) the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage.
    For the purposes of this section:
    "Open container" means any vessel containing an alcoholic beverage, except the originally sealed manufacturer's container.
    "Passenger area" means the area designed to seat the driver of any motor vehicle, any area within the reach of the driver, including an unlocked glove compartment, and the area designed to seat passengers. This term shall not include the trunk of any passenger vehicle, the area behind the last upright seat of a passenger van, station wagon, hatchback, sport utility vehicle or any similar vehicle, the living quarters of a motor home, or the passenger area of a motor vehicle designed, maintained or used primarily for the transportation of persons for compensation, including a bus, taxi, or limousine, while engaged in the transportation of such persons.
    C. A violation of this section is punishable as a Class 4 misdemeanor.
    (1989, c. 343; 2002, c. 890.)


    So it appears that it’s legal for passengers in a car driving down the highway to crack open a few cold ones and consume them as long as the driver is sober (triple zeros) and everyone is 21 or older. I’m a little surprised. I guess I thought it was illegal to have any open alcohol container in a car anywhere.
    No thats wrong, Driver and Passenger in the front can not have an open container period. Ive written people for that on traffic stops after i did a dui follow up on the driver, thats state ABC law. Im a cop in va also. But that just passed in 2006. But like most say check ur city or county code because most have open container laws. Look under the Va abc codes also instead of the va traffic code. But remember if you have an open container you can do all sorts of goodies to the car in way of searching it for more fruits of the crime and dui follow up. You have an open container you can get them out and look for more and charge driver or passenger after you do dui process on driver then you can still get them for drunk in public if they are not in operation of the vehicle but in public pervue. Then you can tow the dam car and inventory it. make sure u check with ur commonwealth first though. Everything i mentioned Ive done and havent had any problems in court with it.
    "Some people spend an entire lifetime wondering if they made a difference in the world. The MARINES don't have that problem." ....Ronald Reagan

  8. #8
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    State law contradicts Suprme Court Case Law

    Quote Originally Posted by VirginiaCop View Post
    This is kind of new on the books but it's there.

    18.2-323.1 Would be the correct state code to chatge under. I just went to court on this last week. You must have the open container, the smell of an alcoholic beverage, and the contents partially removed. The guy had his five year old son in the back seat.
    Another thing the state law does is though it limits what area's you can consider the driver or passenger to be in violation of open container look at US Supreme Court cases related to your search: Carrol Doctrine and Ross "Closed Containers" searches of motor vehicles. Read them well. They back you in searching any area's where the fruits of the crime may be present or hidden which includes not only "grabing area" or curtiledge "Chimmel vs California" and I think Beiu vs Maryland but also closed containers locked or unlocked. That includes the trunk. Look at those case laws at your commonwealth attorney's law library or ask them about them. Those cases I mentioned have to do with the Odor of Marijuana but fruits of the crime covers a great deal of territory. You pull a car over for speeding the driver is a felon based on ur knowledge or inquiries. You approach and notice a round of ammo on the floor. Can you order him out and search his car? Heck yes, even if he doesn't act nerveous. You know he is in violation if he's armed not to mention even if not a felon it's concealed and thats against the law. Is it reasonable to equate ammo on the floor with a gun. You betcha. See my point? You pull a car over and see open container and or smell the odor of alcaholic beverage you call for back up because your next process will be follow up for D.U.I. or Drunk in Public then add the summons for open container.
    "Some people spend an entire lifetime wondering if they made a difference in the world. The MARINES don't have that problem." ....Ronald Reagan

  9. #9
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    Thanks for the replies all,

    I just found http://www.municode.com/ which is a neat site. Since ignorance is not an acceptable excuse at least it is easy to find everything... though some can be tricky to interpret with out a law degree

    "B. A rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open container has been at least partially removed and (iii) the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage."

    For example, with the above, I would interpret this as, if the following 3 conditions are met then one can legally assume the driver has consumed alcohol while driving. However, having a sober driver with a 1/2 empty beer in the cup holder would only meet 2 of the 3 requirements if they are not acting or smell intoxicated and therefore you couldn't make the association of an alcohol beverage consumption. Or blow .000 that would be direct evidence against consumption.

  10. #10
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    No open container law.

    We don't have an open container law per se. But the caveat to that is of course that almost all of the counties and cities in Virginia do. So while you may be stone cold sober and your passenger smashed out of his mind with a fifth of bourbon in hand you may not get a cite from a Trooper, you may in fact get cited or arrested by a local Pd. It depends on the local code. In my jurisdiction the county follows the state codes but when i worked in Fairfax County outside of DC the locals would nab you for an open container in a heartbeat.

    Just my experience.,

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