Have You Been Arrested for Open Container in Georgia?

Have You Been Cited for Open Container in Georgia?

Were You Charged with Open Container Along with a DUI Charge? 

The State of Georgia prohibits the consumption or possession of open alcoholic beverages in the passenger area of any vehicle while on a public highway or shoulder of a public highway.  O.C.G.A. § 40-6-253.  Only the person possessing the open container will be charged with a violation, but if there are no passengers, the driver alone will be charged. If the beverage contains one half percent of alcohol or more by volume, it is considered alcohol and is illegal as long as the container is open, the seal broken, or the contents have been partially removed. Georgia Attorney Richard Lawson is a former prosecutor who has been defending those charged with alcohol and drug-related offenses for more than 20 Years.  His reviews can be found on AVVO and he will put his experience to work for you.

If you are convicted of possessing an open container, two points will be added to your Georgia driver's license.  If you accumulate 15 or more points in 24 months, your license will be suspended for one year.  You will also be subject to a fine up to $200.

If, however, you have been charged with Driving Under the Influence of Alcohol in Georgia, an open container violation may bring enhanced charges and harsher penalties. If you are stopped for a traffic violation and the police officer notices an open container in the passenger area, he will be on heightened alert for any other clues that you might be an impaired driver.  The open container could also cause the passenger area of your vehicle to smell of alcohol, which the officer could attribute to you. Additionally, an open container charge strengthens the State's case against you in a Georgia DUI Case, because an open container is further evidence that you had, in fact, been drinking as well as shows a disregard for the law and irresponsible behavior.

If you are under the age of 21 and charged with possessing an open container while operating a motor vehicle, you could face a license suspension for a period of 120 days with no limited-use driving permit. If you were simply a passenger in the vehicle, but were in possession of an open container, you could still face a Minor in Possession charge in addition to an open container violation.

The Open Container Laws in Georgia Explained in Detail:

The law does not apply to any passenger in the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation or in the living quarters of a motor vehicle or house trailer.  This means that passengers in a taxi cab, limousine, or bus are free to consume alcohol inside the vehicle.

The law makes an exception for unfinished bottles of wine purchased at a restaurant that have been resealed. O.C.G.A. § 3‑6‑4 provides that “any restaurant which is licensed to sell alcoholic beverages for consumption on the premises may permit a patron to remove one unsealed bottle of wine per patron for consumption off premises, if the patron has purchased a meal and consumed a portion of the bottle of wine which has been purchased on the premises with such meal on the restaurant's premises.

A partially consumed bottle of wine that is to be removed from the premises must be securely resealed by the licensee or its employees before removal from the premises. The partially consumed bottle of wine shall be placed in a bag or other container that is secured in such a manner that it is visibly apparent if the container has been subsequently opened or tampered with, and a dated receipt for the bottle of wine and meal shall be provided by the licensee and attached to the container. If transported in a motor vehicle, the container with the resealed bottle of wine shall be placed in a locked glove compartment, a locked trunk, or the area behind the last upright seat of a motor vehicle that is not equipped with a trunk.”

The Georgia law was passed in response to federal requirements.  In 1998, a new Federal program was established as part of the Transportation Equity Act for the 21st Century (TEA-21) to encourage states to adopt laws prohibiting the possession and consumption of alcoholic beverages in the passenger areas of motor vehicles.  23 USC 154.

If a state does not comply with the Federal program requirements, a portion of that state's federal-aid highway construction funds will be redirected to the state's Section 402 State and Community Highway Safety Grant Program. 23 C.F.R. § 1270.4(a) (2000). Administered by the National Highway Traffic Safety Administration (NHTSA), Section 402 was enacted as part of the Highway Safety Act in 1966 and its purpose is to create safety programs aimed at reducing crashes, deaths, injuries, and property damage.

To comply with Section 154, Georgia's open container law must prohibit both possession and consumption of any alcoholic beverage container within the passenger area of any motor vehicle, including the unlocked glove compartment and any area readily accessible by the driver or passengers while seated. The law must apply to all open alcoholic containers and all alcoholic beverages including beer, wine, and distilled spirits that contain one half of one percent or more of alcohol by volume.

It must apply to all vehicle occupants except those designed, maintained, or used primarily for transportation of people for compensation or the living quarters of motor homes.  The law must also apply to all vehicles on a public highway or right of way of a public highway.  And finally, the law cannot require probable cause that another violation had been committed before allowing enforcement of the open container law. 23 C.F.R. § 1270.4(b) (2000).

The Section 154 program was passed in response to growing concerns about alcohol involvement in motor vehicle crashes around the country.  Motor vehicle crashes are the leading cause of death for persons aged 2 through 33 and while only 6 percent of crashes involve alcohol, 41 percent of all fatal crashes involve the use of alcohol. NHTSA.

To illustrate the effectiveness of the threat of highway funding appropriation, consider that in 2001, Georgia passed a bill to toughen its open container laws and comply with the Federal program.  The Georgia House then attempted to add a “trashman amendment” to protect people who collect cans from the side of the road for recycling purposes from being charged under the new law, but the National Highway Traffic Safety Administration sent the state a letter saying the amendment was ''overly broad and (was) likely to undermine the open container restrictions in Georgia's law.'' The state of Georgia stood to lose 84 million dollars in federal highway funding that year and 212 million dollars over the next five years if it did not strengthen its drinking and driving laws.  Ultimately that was too great a risk, and the “trashman amendment” was removed to meet the requirements of Section 154.

The State of Georgia is one of only seven states that do not have a law prohibiting the possession of an open container in a public place. However, local jurisdictions have passed ordinances prohibiting open containers of alcohol in public.  A notable exception is the historic district of downtown Savannah.  Savannah allows the possession and consumption of an alcoholic beverage on the street if it is in an open plastic cup of not more than 16 ounces. The city of Alpharetta passed an ordinance allowing patrons to walk out of businesses with a single drink in hand within its downtown district.

Only plastic cups less than 16 ounces are allowed. Cans, bottles, and glasses are prohibited. The city of Carrollton has also approved legislation as recently as 2012 allowing open containers downtown as long as the beverage was bought at a business in the district. The City Manager Casey Coleman told the Daily Report the rule would not apply to alcohol bought outside the district because "this is not Savannah.”

What Should A Person Do if Charged with Open Container in Georgia:

If you are charged with Open Container, especially in combination with a DUI in Georgia, you need to take the case very seriously. The Open Container charged can be used to enhance punishment against you in your DUI Case.  In additional, it can be used as evidence against you to secure a DUI Conviction in Georgia.  So, it's extremely important to defend against the open container charge as part of your overall Georgia DUI Defense. Our office is available 7 days a week, 24 hours a day.  We are always ready to begin your Best Georgia DUI Defense.  Call now.