You’re planning on going out with friends for a few “adult beverages.” You get picked to be the driver, which means your drinks will be soft. On the way to the bar, one of your passengers cracks open a cold one moments before you are pulled over by the police. Your get charged with open container. But how?
Open container laws in Pennsylvania mean that anyone in your vehicle can cause you to get a ticket. The officer who issues your citation may also suspect you of further crimes, allowing them to detain you, question you, or even obtain a warrant to search your vehicle.
Unlike retail alcohol bottles, open container laws are not airtight. Defendants have several possible defenses to contest the stop, challenge the information on the police report, or seek lesser consequences through a plea arrangement or sentencing leniency request.
Steven E. Kellis, an experienced DUI lawyer in Pennsylvania, can provide you with legal representation to help you fight criminal charges associated with an open container. Schedule your free, no-obligation case review today when you call (267) 314-6693 or contact us online now.
Open Container Laws in Pennsylvania
The open container laws as they stand throughout the state (Title 75 § 3809) pertain to both drivers and passengers. No person in your vehicle, despite being legally of age to drink alcohol, can have an open container in a motor vehicle. It also does not matter if the person with the open container has consumed the alcohol. Any alcoholic beverages in a motor vehicle must be sealed.
Only certain licensed taxis, limousines, and “party buses” allow for any exceptions, so long as the containers remain in the passenger area of the vehicle-for-hire. An individual who lives in a “house coach,” such as a camper or Winnebago, or a “house trailer” may also be allowed to have an open container, provided they are in their living quarters.
21 Is No Defense
Again, it does not matter if a person is 21 or older if they are found to have an open container in a motor vehicle. If you hope to defend yourself against the charges, you must be able to prove that you did not have the open container in your vehicle. If you cannot prove this, you will be found guilty of the summary offense of open container in a motor vehicle. The penalties for those convicted of the crime include license suspension and fines. The penalties for open container can be enhanced depending on the person’s criminal background.
What Are the Penalties for Open Container in Pennsylvania?
An open container violation is described as a “summary offense” in P.S. Title 75 § 3809, meaning it is a minor crime. According to the non-profit Community Legal Services of Philadelphia, “A conviction for a summary offense usually results in a fine.”
However, § 3809 also notes that your license may be suspended pursuant to § 1542 if you are a habitual offender. A habitual offender is any person who has accumulated several traffic-related convictions within a five-year period. “Convictions” can also encompass crimes for which you entered ARD.
Furthermore, an open container can justify a traffic stop or “reasonable suspicion” to allow the officer involved to investigate further crimes. After seeing what may have been an open container in a vehicle or on someone’s person, the officer can then pursue charges for:
- Drunk and disorderly conduct
- Minor in possession of alcohol
- Possession of illegal drugs
- Furnishing alcohol to a minor under 18
Adding up all your charges can lead to a considerable amount of possible penalties, especially if you have a history of prior convictions. These crimes may lead to a license suspension, jail time, or other consequences.
Working with an experienced criminal defense lawyer in Pennsylvania can help you examine the circumstances of your stop, and help you beat other charges by proving that the suspicion of an open container was unwarranted. At very least, your attorney can work to consolidate your charges, seek lesser charges, or seek more lenient penalties for your suspected crime(s).
Probable Cause Is Necessary
For a police officer to charge a person with open container in a motor vehicle, they must have probable cause. This means that an officer cannot charge a person with open container if they search a vehicle illegally. They are not also permitted to establish probable cause while conducting their business improperly. When the officer charges a person with open container after acting in a manner that is not proper, the charges will not stand.
What Counts as an “Open Container”?
- 3809 does not define an open container, per se. Generally, the accepted definition is any container of alcohol with a broken retail seal located in the passenger cabin of a typical vehicle. This broad definition means that it is up to the officer’s discretion to define the open container and pursue charges against a suspected violator of the statute.
Common types of open containers include:
- Cups, mugs, and tumblers containing alcoholic beverages
- Unsealed cans/bottles/containers of beer and other single-drink beverages
- Unsealed wine or spirits (liquor) bottles
- Any non-standard vessel used to contain alcohol during transport
Furthermore, someone can be in violation of an open container law if they “consume a controlled substance […] or an alcoholic beverage while located on a [public road].”
As you can see, the law gives officers a lot of leeway to define the open container reported. One purpose of this vagueness is to allow the officer to file charges against an individual suspected of consuming alcohol in their vehicle and on a public roadway. Otherwise, the officer is forced to observe the individual actually consuming from the cup or vessel.
You may notice that the law allows for the filing of open container charges for re-sealable liquor and wine bottles. It is, again, up to the officer’s discretion to determine that transporting any unsealed bottles is worthy of a charge. As such, it is safest to place any unsealed bottles in the trunk or otherwise outside of the vehicle’s passenger areas.
You cannot be charged with open container in a permissible vehicle. These include limos and party buses. In addition, you may not have been aware that a passenger in your car had an open container. For example, if the person was seated behind you and you didn’t see the container, you may be off the hook. The last defense can be a difficult one without the assistance of an attorney.
Remember that it is up to the prosecutor to prove their case, it is not up to you to prove your innocence. The officer must have acted properly and gathered evidence via legal means. An experienced attorney can review the details of your arrest and help you determine the best defense for your unique situation.
Frequently Asked Questions (FAQs) About Pennsylvania’s Open Container Law
I didn’t know about the container, or I didn’t realize a passenger had an open container. Can I still be in violation?
Yes. The language of the law allows for prosecution of any individual with a qualifying open container or who is suspected of having consumed alcohol while on a public road.
We weren’t drinking from the unsealed container, yet I still got charged. Is that allowed?
Saying that you were merely transporting the unsealed container is not a viable defense. If the container is within the passenger area of a vehicle – or within easy reach of passengers – then there is a chance you can be charged. To be safe, place all unsealed alcoholic beverage containers in your trunk. Even then, it is still possible to be charged if the officer argues the beverages were accessible to occupants.
Am I allowed to drink in my car in my own driveway/ a friend’s driveway?
The language of the PA law specifically refers to, “a highway in this Commonwealth,” which encompasses all public roads within the state. You may be able to successfully argue that you were not in violation of an open container law if you were located entirely on private property. However, if you bring this up at the time of your arrest, the officer may argue that private property boundaries do not extend to the driveway, or they may allege that you are actually DUI since you had the vehicle’s keys on your person or were otherwise in “actual physical control” of the vehicle. Never argue with the officer at the scene. Ask if you are being detained/arrested, and if you are, plead the fifth and request an attorney.
We had alcohol in the back of my SUV/hatchback, and we were charged. Is that allowed?
Unfortunately, vehicles that don’t have an enclosed rear cargo area may cause trouble if you have second-row passengers who can access the unsealed alcohol containers. You may wish to transport unsealed alcohol in something that cannot easily be accessed, such as a zippered bag with a lock on it. Even then, it is at the discretion of the officer to determine what is justifiable for an open container charge, so you may find it best to simply not travel with any container of alcohol for which the seal has been broken.
I was in a licensed for-hire vehicle, so why was I charged?
Technically, § 3809 allows for the consumption of alcohol “in the passenger area of a motor vehicle designed, maintained or used primarily for the lawful transportation of persons for compensation.” This can include taxis, buses, and sometimes even Uber/Lyft vehicles. However, it is advisable to only drink in for-hire vehicles that give you specific permission to do so, such as limousines and party buses. Doing otherwise can be a direct violation of the ride provider’s policies, and they may prompt an arrest for other reasons than just an open container. You may be able to contest the open container laws but still found in violation of other related laws.
I was in my camper/travel home/trailer, so why was I charged?
§ 3809 also provides an exception for, “an individual in the living quarters of a house coach or house trailer.” This can mean you can legally drink in your own camper/trailer/travel coach/etc provided you are in the “living quarters” and are permitted to do so on the property where you are currently parked. Some officers may misunderstand this exception and attempt to charge you for open container. You can contest the charges later with the assistance of an experienced Pennsylvania criminal defense lawyer.
Will I get arrested if I have an empty beer bottle or an empty disposable cup used for alcohol?
Yes, you can be charged with open container if the nearly empty container contains trace amounts of alcohol or even alcohol residue. This can create a situation where you put trash in your vehicle to dispose of later that is considered evidence of an open container violation. It is advisable to thoroughly rinse all alcohol containers before transport or contain them in a trash bag or other vessel in such a way that they are not readily accessible.
Do I really need a lawyer for an open container charge?
An open container charge can involve more than “just a fine.” Paying your fine amounts to a guilty plea, which can add to the amount of “repeat offender” convictions within a five-year period. This situation makes it harder to request leniency, can lead to harsher penalties for any future convictions, and may make you ineligible for programs like ARD. Furthermore, you will have to wait up to five years to have the conviction removed (expunged) from your record.
Hiring an experienced Pennsylvania DUI attorney can help you seek the optimal outcome. In some cases, fighting an open container charge can remove the only justification an officer had for a traffic stop, forcing the prosecution to drop all other charges.
Fight Your Open Container Charges with an Experienced Pennsylvania Criminal Defense Attorney
If you have been arrested for open container in Philadelphia, reach out to our office. We will discuss your case at a free initial case evaluation. Call today at (267) 314-6693 or contact us online to schedule your consultation, and let us help you mount a strong defense against your charges.