[Editor's note: This post was revised slightly on January 25, 2011, in response to a helpful comment.]
Here’s a quiz.
Ashley Angel, who is 21 and a senior in college, leaves the library, where she has been diligently studying for mid-term exams for the previous six hours, to drive to a party a few miles from campus. On the way, she picks up her friends, Bethany Bedlam and Diana Daring, who also are 21. Bedlam and Daring have spent the last few hours gearing up for the party rather than studying. Bedlam gets into cab of Angel’s pick-up truck with an open bottle of King Cobra malt liquor in her hand. Daring hops into the truck bed with an open beer. At the next stoplight, Angel drives up next to a police vehicle. The officer sees Bedlam holding the bottle of malt liquor, which clearly is half-full, though the cap is screwed on top of the bottle. From her perch in the bed of the truck, Daring drinks from her bottle of beer and waves to the officer. When the light turns green, the police officer pulls behind Angel’s car and activates the blue lights and siren on her cruiser. Which of the following is a true statement?
A. Angel has violated North Carolina’s open container law by driving a motor vehicle on a highway while there is an open alcoholic beverage in the passenger area of the motor vehicle.
B. Bedlam has violated North Carolina’s open container law by possessing an open alcoholic beverage in the passenger area of a motor vehicle.
C. Daring has violated North Carolina’s open container law by possessing an open alcoholic beverage and consuming it in the passenger area of a motor vehicle.
D. All of the above statements are true.
E. Only B and C are true.
F. There is no open container violation in this case.
I wanted to print the correct answer in tiny font upside down at the end of this post. But Jeff, our resident blog meister, doesn’t know how to do that. [Editor's note: Don't blame the messenger -- I don't think our blog software supports upside down text! Tiny, I could do.] So, to avoid spoiling the surprise by putting the answer right here, I’ll devote the rest of this post to a discussion of the controlling statute.
The prohibition against transporting an open container is codified in G.S. 20-138.7. There are two types of violations. First, it is an infraction to possess an alcoholic beverage in other than the unopened manufacturer’s original container or to consume an alcoholic beverage in the passenger area of a motor vehicle while the vehicle is on the highway. See G.S. 20-138.7(a1). The passenger area of a motor vehicle is defined as “the area designed to seat the driver and passengers and any area within the reach of a seated driver or passenger, including the glove compartment.” G.S. 20-138.7(f). Neither the trunk nor the area behind the last upright back seat of a station wagon, hatchback, or similar vehicle is considered part of the passenger area. Thus, the bed of Angel’s pick-up truck, where Daring is seated, is not part of the passenger area.
There are a few exceptions to the rule prohibiting possession and consumption of open alcoholic beverages in the passenger area of a motor vehicle. It’s okay to consume or possess an open alcoholic beverage in the passenger area of a motor vehicle that is designed, maintained, or used primarily for the transportation of persons for compensation. Ergo an of-age bride and groom can sip champagne in the limousine as they are leaving the reception without fear of violating the law. Folks also may lawfully consume or possess open containers of alcohol in the living quarters of a mobile home, house car, or house trailer. (In case you are wondering, it takes more than a pillow and change of clothes to qualify as a “house car.” Such a vehicle must have at least four of the following facilities: cooking, refrigeration, self-contained toilet, heating or air conditioning, a portable water supply system including a faucet and sink, separate 110-125 volt electrical power supply, or an LP gas supply. G.S. 20-4.01(27)(d2).) Thus, as you’ve no doubt deduced, Bedlam has violated the open container law. But only Bedlam, and not Angel or Daring, may be cited for this infraction, since only the person who possesses or consumes an alcoholic beverage in violation of G.S. 20-138.1(a1) may be charged with this infraction.
What about Angel? The other type of open container offense defined in G.S. 20-138.7 is a more serious violation, a Class 3 misdemeanor for first-time offenders, and may be committed only by the driver of a motor vehicle. G.S. 20-138.7(a) prohibits driving a motor vehicle on a highway while there is an alcoholic beverage in the passenger area in other than the unopened manufacturer’s original container if the driver is consuming alcohol or alcohol remains in the driver’s body. Angel, who has been studying all day, presumably has no alcohol remaining in her body and she is not consuming alcohol. Thus, she has not violated G.S. 20-138.7(a).
There are a few more statutory oddities worth noting. “Motor vehicle” has a special definition under G.S. 20-138.7. In this context, the term “means only those types of motor vehicles which North Carolina law requires to be registered, whether the vehicle is registered in North Carolina or another jurisdiction.” G.S. 20-138.7(a3). So the offense can’t be committed in a golf cart–a device considered a motor vehicle in other contexts but which cannot be registered with DMV. See G.S. 20-54(8).
G.S. 20-138.7(b) provides that open container offenses are alcohol-related offenses subject to the implied-consent provisions of G.S. 20-16.2. Does this mean the officer may arrest Bedlam and take her to the police station for a breath test? I don’t think so. Infractions are non-criminal violations of the law, for which a person may not be arrested. See G.S. 14-3.1. I doubt the legislature intended to supersede the rule in G.S. 15A-1113(b), (c), which allows a law enforcement officer who believes a person has committed an infraction to detain a person for a reasonable period in order to issue and serve a citation and, in very limited circumstances, to take the person before judicial official to determine if a bond is necessary, by authorizing a longer and more intrusive detention of a person charged with violating G.S. 20-138.7(a1). Instead, I think an officer may require submission to a chemical analysis only for drivers charged with the misdemeanor offense.
In any event, it seems unlikely that drivers charged solely with violating G.S. 20-138.7(a) are hauled to the breath testing room very frequently, since G.S. 20-138.7(d) authorizes the administration of an alcohol screening test and reliance upon its results in court for the purpose of determining whether alcohol was present in the driver’s body.