Print This Post Print This Post

Think You Know North Carolina’s Open Container Law?

January 24th, 2011
By Shea Denning

[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.

Tags: , ,

17 Responses to “Think You Know North Carolina’s Open Container Law?”

  1. J. Powell says:

    Would 18b-401 not apply to Angel?

    § 18B‑401. Manner of transportation.

    (a) Opened Containers. – It shall be unlawful for a person to transport fortified wine or spirituous liquor in the passenger area of a motor vehicle in other than the manufacturer’s unopened original container. It shall be unlawful for a person who is driving a motor vehicle on a highway or public vehicular area to consume in the passenger area of that vehicle any malt beverage or unfortified wine. Violation of this subsection shall constitute a Class 3 misdemeanor.

  2. Shea Denning says:

    You’re right. I suppose I should change this post to read “Think I know open container law?” I’m going to ask the blog meister to change the facts to reflect that Bedlam has an open bottle of King Cobra malt liquor. Since this beverage is a “malt beverage,” rather than fortified wine or spirituous liquor, GS 18B-401(a) does not bar its transportation. See State v. Poczontek, 90 N.C. App. 455 (1988).

  3. Doug says:

    This makes me want to test it out… darn you people!!!

  4. Pete Zellmer says:

    What about the “Trash” cases? Ex: Defendant is driving alone in a sedan, totally sober, when stopped at a checkpoint. Officer sees a completely empty bottle of liquor on the floor in the backseat footwell. Defendant says she went out last night, her friends were in the backseat drinking, and they left it there rather than litter.

    Normally you can be found to have constructive possession of items in your car. She is alone and could have cleaned if she’d made it a priority. But should a dry bottle even count as an open container instead of regular trash? How long is a proper period of time to expect her to clean the car? What if it’s a really messy car with lots of trash on the floor which she clearly rarely cleans? What if the bottle is in a bag or box with several other empties and she says she’s planning on stopping off at the recyling drop off when she’s out that way later?

  5. Shea Denning says:

    If the bottle or can is truly dry, there is no violation of G.S. 20-138.7, which prohibits possession of “an alcoholic beverage” in an open container. Of course, bottles and cans almost always contain some residue of an alcoholic beverage. Given that the state must proffer substantial evidence of each essential element, I suspect that at some point residue from such a beverage fails to satisfy this threshold. Cf. State v. Hensley, 190 N.C. App. 600 (2008) (determining that court erred in denying defendant’s motion to dismiss charge of possession of a malt beverage by a person under 21 in violation of G.S. 18B-302(b)(1) when “State presented no evidence that there was even any liquid remaining in the beer bottles, nor any residue of a liquid, and not even the type of beer indicated by the label, which could give rise to an inference that the type of beverage in the bottle fits the legal definition of ‘malt beverage’” and further noting that the arresting officer “testified that he threw away the beer bottles rather than preserve the bottles as evidence.”)

  6. Jay says:

    So the driver will not be charged with anything as long as the driver has not consumed any alcohol? In other words, the only ticket is situations like this are given to the passengers possessing the alcohol?

    Thanks.

  7. JP says:

    Here’s an interesting one. Im currently awaiting hearing on this issue, but on a MOTORCYCLE. THe ‘open container” was found in the locked trunk under the passenger seat of the bike, which is behind me (as operator) and is under lock and key. This would be considered a trunk or area not accessible to operator or passenger while driving, right?

  8. Eric says:

    This is why i hate law, there are way too many words trying to get a simple point across. I think they do it on purpose just to confuse the average driver. JP, they are really charging you for having a beer, under the seat, in a lock compartment? that is ridiculous. Why and how did they even get the authority to check the compartment?

  9. Steven says:

    I recently quit my day job in order to go back to school for a program that is only offered during the day. I saved enough money for me to use on food, bills, and other necessary expenses while I search for an evening job. I’m in school now and recently was about to get hired by a company in the afternoon. Everything was going the way I planned! Just today, the nice lady in HR called me to tell me that I can’t be hired because I have an Open Container charge from back in 2008 when I was 20! So now after looking around online, I come to find out that I probably won’t even be able to find a job because of that charge and I don’t know how long it will stay on my record.

    I had a bad attorney who was supposed to help me with that charge since it was a very similar scenario to what Pete Zellmer said above. I had gone to a friends apartment to pick him up. We were going to another friends party about 1 hour away. While waiting on my friend to get ready, I am parked outside sitting in my car in front of the community pool. I hadn’t noticed, but some of my acquaintances were at this pool drinking. They came up to me and asked if I would dump their trash in the dumpster on my way out of the apartment complex, since it was quite far of a walking distance. I said sure, I didn’t see an issue with throwing the stuff away. It was a Wal-Mart or grocery sized bag with about 5 containers in them, all kind of crushed in the middle and empty. Quite a few minutes later my friend finally comes out of his apartment and we set off to our 1 hour trip. By then, from waiting on him, I had completely forgotten about the trash in the back seat.

    Finally we arrive to our friends party, we all eat and drink a little. I decide to stay because I had a few drinks and didn’t want to risk getting pulled over or getting into an accident. The next day at about 10 am I am going back home (once again about 1 hr away) and I get pulled over on the highway on my way due to speeding. The cop looks at the back seat on the floor and sees the bag and asks me whats in it. I had COMPLETELY forgotten to throw it away. I tell him that its trash that I was to throw away, I basically tell him the same thing you all read here about the apartment complex, the dumpster, and me forgetting. He tells me I will have to explain that to the Judge. He tells me to hand it over to him. He takes the containers out and flips them over and out comes little drips of left over alcohol. He gives me a tickets for speeding and possession open container by 19/20!!

    I get a crappy attorney, because I didn’t want to involve my parents and it was my very very FIRST ever offense so I had no idea what I was getting myself into or that even my attorney was a crappy one. I had no idea how criminal it was until now in 2011. My attorney never explained, he said everything would be fine!

    Anyway here I am now, I’m 23 can’t get a job due to this and I’m just so angered at myself and at my attorney and just at the whole situation. I’m don’t consider myself a bad person. That’s the only thing I ever been charged with. I don’t even drink, its rare and limited to just a few beers.

    Sorry to have made it so long. Any advice? I am thinking of speaking with a different attorney about this. I wouldn’t like to opt for an expungement (spelling?), it just seems a little ridiculous to me. Thanks to all for reading!

  10. Bruce Wolff says:

    What if the driver is not 21 and is not drinking and the passenger in the the passenger area is if age and is drinking? Also you never gave the consequences of these actions. Who gets ticketed, how much is the ticket, and is there any loss of driving priviliges for driver or passenger?

  11. Martin says:

    Does having 11 unopened beers in an open 12 pack count as an open container in NC?

  12. Laura says:

    I’d like to know the answer to Martin’s question. In Tennessee, having a missing beer out of an otherwise open 6-pack is absolutely fine… but a friend from VA kept going nuts because she said I was driving around with “open alcohol.” I would hope that one could take one or two beers out of a commercial package and transfer the rest without penalty. If that’s “open alcohol” then NC law enforcement has too much time on it’s hands.

  13. Laura says:

    So do we ever get the answers to the quiz? If not, what is the purpose?

  14. Travis says:

    Say if I was on the passenger side of the vehicle drinking a beer and the driver haven’t drink anything at all. is she get changer with open container.

  15. Steve says:

    Ok so what if a passenger is consuming an alcoholic beverage, will the driver get charged or the passenger?

Leave a Reply


− 1 = seven


Print This Post Print This Post