23222 (a) No person shall have in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands… any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed.
In California, it is illegal to have any “open” container of alcohol in your vehicle. This is true regardless of whether you are drinking it and even if there is no longer any alcohol in the container. If police find any open container in your car when they pull you over, you can be charged under VC 23222.
Although illegal, the penalties for this law are not nearly as severe as the penalties for DUI in California.
What counts as an open container?
Many things that you wouldn’t normally think of as open containers still count. For example:
- Cups, glasses, and hip flasks are all open container
- A bottle that has had the seal removed counts as open even if it has never been open
- Bottles of wine which have been opened but re-sealed with the cork count as open containers, even if they are still full
- Empty cans or bottles under the seat count as open containers
- A growler of beer which has never been opened counts if the seal has been removed or if there never was a seal
All of these only apply to container that have, or had, alcohol in them. Containers that held water or other non-alcoholic beverages are legal.
Is an open container always illegal?
No. You are allowed to have open containers in your car under certain circumstances:
- If you are driving only on private lands, such as dirt roads on private property, VC 23222(a) does not apply
- If you are a passenger in a vehicle-for-hire, like a limousine or taxi, it is legal to consume alcohol and have open containers
Open containers can also be legally transported if they are stowed somewhere passengers cannot easily reach them, such as the trunk (even if the car is a hatchback).
What are the penalties for having an open container in a vehicle?
Having an open container in a vehicle is considered an “infraction,” meaning it is not a misdemeanor criminal offense. It’s similar to receiving a speeding ticket. The maximum penalty is a fine of up to $250.
There are two exceptions to this:
- If you are less than 21 years of age, you will face much more serious consequences. You could be charged with a different law, underage possession of alcohol in a vehicle (California VC 23224). This charge is a criminal misdemeanor, and carries penalties of up to 6 months in jail and up to $1,000 in fines. It can also cost you your license.
- If the open container violation is charged together with a DUI, the judge may choose to impose stricter DUI penalties than in a case without the extra offense.
No matter what the circumstances, having an open container in a vehicle will always make the police suspicious, and they are likely to investigate you for DUI. You could be asked to take a breath test or be arrested on the spot for DUI charges.
In other (rare) cases, VC 23222(a) is used as a plea bargain to DUI. This means that prosecutors drop the DUI charge if you agree to plead guilty to an open container violation instead. This is one of the best possible outcomes for many DUI cases.
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