Can passengers in a car drink or possess open containers of alcohol?

Nearly everyone knows that it is illegal for a driver to possess and/or consume an open container of alcohol while operating a motor vehicle on a public highway.[1] But many people may not know that Virginia does not prohibit passengers from drinking alcohol or possessing open containers of alcohol in a vehicle.  However, there are important factors to consider before you decide crack open a cold one as a passenger in a motor vehicle.

What is “Rebuttable Presumption”?

First, Virginia’s open container law creates a “rebuttable presumption” that the presence of an open container in the passenger area indicates that the driver was drinking it.  This means that courts will assume that the presence of an open container means that the driver was drinking it unless the driver can prove that he or she was not drinking it.  This presumption can be hard to overcome, as drivers can be held responsible for drinking while driving based on a number of bare-minimum facts, such as whether the open container is in the “passenger area” of a vehicle, within the driver’s reach, or the driver shows signs associated with drinking alcohol.

The “passenger area” of a motor vehicle is defined as the area designed for the driver and passengers of the vehicle to sit, as well as any area within the driver’s reach. This includes an unlocked glove compartment.  The “passenger area” does not include the trunk, the living area of a motor home, or the passenger area that’s primarily for the transportation of persons for taxi purposes.

Drinking as a Passenger Could Violate Public Drinking Law or Local Ordinances

While Virginia’s open container law doesn’t specifically apply to passengers, drinking alcohol as a passenger can violate Virginia’s general public drinking law.[2]  This law prohibits any person from drinking an alcoholic beverage in a public place not designated for it.  Such a public place is defined as an area permitting public access, and includes highways, streets, and lanes.  Therefore, drinking in a car that is driving on a highway, street, or lane can be in violation of the public drinking law.

Third, drinking alcohol as a passenger can violate local city or county ordinances.  For instance, Chesterfield County prohibits open alcoholic beverages on any street, road, or highway located within the county, and the city of Charlottesville prohibits possession of open containers of alcohol on any public street.

It is important to remember that just because something is legal to do may not make it wise to do.  Drinking as a passenger in a motor vehicle can, at the very least, impair your ability to be aware and cognizant of your surroundings. At worst, you could harm or distract the driver of the vehicle.  Making the decision to drink in the car as a passenger can expose you to a potential misdemeanor and fines, while leaving the driver at risk for a more serious charge.  The legal issues that arise are not worth it; save yourself and your driver a good deal of trouble by simply waiting until you reach your destination to crack open a cold one. Most likely, it’ll taste better.

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[1] VA Code § 18.2-323.1(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.”

[2] VA Code § § 4.1-308(A) “If any person takes a drink of alcoholic beverages or offers a drink thereof to another, whether accepted or not, at or in any public place, he is guilty of a Class 4 misdemeanor.”