23221 (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.
In California, it is illegal for anyone in a vehicle to drink alcohol. This includes both passengers and the driver. If anyone is drinking alcohol when police pull you over, that person can be charged under VC 23221.
Penalties for this law are nowhere near as severe as the penalties for DUI in California. In fact, it is a form of the less serious open container violation.
What counts as drinking in a vehicle?
To prove that you are guilty of breaking VC 23221, a prosecutor has to show three things:
- You were drinking alcohol
- While you were in a vehicle
- And the vehicle was on a “highway”
In this context, drinking alcohol simply means you were holding an open alcoholic drink.
A vehicle includes any self-propelled device such as a golf cart, boat, moped, etc. Technically, it is even illegal to drink while riding on a Segway.
Highways in legal speak don’t just mean large freeways. The term includes any public road—such as a city street.
So, for example, if you are driving your friends home from a party and they bring their drinks in the car, if you get pulled over all of your friends could get ticketed for drinking in a vehicle. However, if you were driving around on ATVs on private property, there is no “drinking in a vehicle” violation.
Are there exceptions where I can drink in a vehicle?
Yes. VC 23221 does not apply to passengers in certain licensed vehicles-for-hire—such as a limousine or private bus. Even taxi passengers are technically exempt.
What are the penalties for drinking in a vehicle?
Drinking in a vehicle is classed as an “infraction,” not a misdemeanor crime. This means it is essentially the same as a speeding ticket or other minor violation. The only penalty is usually a $250 fine (or less).
However, if you are under 21 years of age, the consequences can be much more severe. You could be charged instead with California VC 23224 (underage possession of alcohol in a vehicle). This charge is a criminal offense, and it can carry penalties of up to 6 months in jail and up to $1,000 in fines.
No matter what your age, if you are the driver in a vehicle where anyone is drinking or has an open container, you will likely be suspected of DUI and asked to take a breath test. In many cases you will simply be arrested for DUI on the spot. Often, VC 23221 is only used as a plea bargain if the prosecutor cannot prove a DUI charge. They always want to get a conviction for the more serious charge if possible.
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