Drinking While Driving -“Open Container”

Under Virginia law, it is unlawful for any person to consume alcohol while driving a motor vehicle on a public highway. Virginia legislators created a rebuttable presumption that you as a driver consumed alcohol in violation of this law if (1) there is an open container in the passenger area of your vehicle, (2) some alcohol has been at least partially removed, and (3) your appearance, odor, speech or other physical characteristics may be reasonably associated with the consumption of alcohol.

Some people are surprised to learn that, in Virginia, drinking while driving only carries a fine as punishment. However, if you opt for the convenient road of simply pleading guilty and paying a fine, you will end up with a criminal conviction on your record. Don't be fooled, drinking while driving is a criminal offense- a Class 4 misdemeanor. Unfortunately, as you go through life, you may be asked about prior criminal convictions each and every time you fill out applications or undergo interviews for loans, schools, jobs, adoptions, etc.

We are experienced Virginia criminal defense attorneys who will aggressively fight your charges and defend your record. Don't make the mistake of trying to go it alone without hiring a lawyer. When the results matter, rely on an attorney who won't give up on you.

Call us today for a free case evaluation at 1-888-384-5997.

§ 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.

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