Open Container

 

The Open Container Laws of California can be found in the following California Vehicle Codes (CVC):

CVC – 23221 – driver or passenger drinking or smoking cannabis while driving.

CVC – 23222 – possession of open container of alcohol or cannabis while driving.

CVC – 23223 – no driver or passenger shall have an open container of alcohol or cannabis while in a motor vehicle on a highway.

CVC – 23224 – possession of an open container by person under 21.

CVC – 23225 – presence of an open alcoholic beverage in the vehicle.

CVC – 23226 – open container stored in passenger compartment.

CVC – 23229.1 – for-hire vehicles with open containers when transporting persons under 21.

These sections make it illegal for a person to operate an automobile with an open alcoholic beverage in the vehicle, even if the beverage is not being, or has not been, consumed.

Infraction vs. Misdemeanor

This/these can be charged as an infraction or misdemeanor. The difference usually is, if the driver or passenger violating the law is under 21 years old, it will usually be charged as a misdemeanor. If over 21, it is typically charged as an infraction.

Defenses to California’s Open Container Law

Defenses are case specific and which defense is best for your situation will depend on the details of your situation. That said, a few possible include (but are not limited to):

• The open container was in the trunk, (or locked container in the case of an off-road vehicle),
• The open container could not reasonably be reached by the defendant,
• You were the driver or passenger in a “hired” car, such as a taxi, bus, housecar/RV, camper, or limousine,
• The initial stop of your vehicle was without reasonable suspicion and unlawful,
• The officer discovered the open container as a result of an unlawful search of the vehicle.

Container “Open” ?

The container does not have to literally be ‘open’ (i.e. – no top/cap on the container). “Open” has come to be defined to include:

• The top/cap has been opened,
• The seal has been broken
• The alcohol or cannabis in the container has been entirely or partially consumed.

“Possession” ?

There is ample case-law defining “possession”.  Perhaps you were in the back-seat and the open container was in the front. Or you were in the front-seat and the container was in the back, or other similar situation.  To give you a small amount of insight into the possible approaches, see U.S. v. White – container located where defendant could/could-not exercise control over the container), or United States v. Ojeda – (facts showed the driver could, but the passengers could not, exert control over the container).

Additionally, when your situation occurs, there will likely be even more helpful case-law that can be used in your defense.

Time is Valuable – Call Today for your Free Consultation

When it comes to constructing the best possible defense strategies for you, time is valuable. If bail is an issue, there may be options to propose no/low bail.  Additionally, memories fade, and possibly helpful evidence may become unavailable, and possible early negotiating meetings with the assigned prosecutor pass by.

Call the Law Office of James L. Hassey today at (619) 745-5555 so we can answer your questions and help you.