Updated: Nov 14
In California, it is illegal for a driver to drink alcohol and drive a motor vehicle at the same time. This is true even if the driver is not technically under the influence of alcohol (DUI). It is also illegal for a driver to have an open container of alcohol in his vehicle even if the driver is not drinking the alcohol while driving. It is even illegal for a passenger to drink alcohol while riding as a passenger in a vehicle (VC 23221 – 23225).
Note: Open container laws apply to motor and electric vehicles, watercrafts, boats, and golf carts on public highways. For example, drinking alcohol while driving a golf cart on a private golf course is not a violation of VC 23221 because a private golf course is not covered under California open container law.
Open Container Defined: A container is any receptacle used to store liquid, such as a bottle, thermos, can, etc. Open means that the container’s seal is broken. For example, an unopened bottle of vodka from the supermarket is not an open container because the seal on the bottle of vodka has not been broken. On the other hand, a thermos is not sealed even when the lid to the thermos is affixed to the container. Therefore, a thermos filled with vodka is still considered an open container under VC 23221.
Note: The laws that prohibit drinking alcohol while driving, or possessing an open container of alcohol while driving, also apply to smoking marijuana while driving. For purposes of brevity, this article discusses California open container laws related to alcohol. Just keep in mind that the same discussion and laws could apply to the smoking marijuana, or possessing marijuana, while driving.
Possession Required: The district attorney cannot prove that the driver, or any passenger, has violated an open container law unless the district attorney can prove that the defendant possessed the open container. Possession means actual or constructive possession. Actual possession of an open container means that the defendant has the container on his person, such as in his pocket. Constructive possession of an open container means the defendant has control over the container, such as when the open container is in the defendant’s glovebox. Usually, the district attorney can show the driver possessed an open container in his vehicle because the driver has a right to control the contents of his vehicle. However, the district attorney will still need to prove that the driver knew the open container was in the driver’s vehicle in order to secure a criminal conviction against the defendant. With respect to passengers, proving possession of an open container can be more difficult for the district attorney; this is especially true when there are more than two persons in the vehicle at the time the open container was discovered.
Note: It is illegal for a minor to possess a container of alcohol in his vehicle even if the vehicle is not opened, unless the minor is accompanied by an adult in the vehicle (adult means a person over the age of twenty-one (21)). Also, limo drivers may allow alcohol in the limo when minors are escorted in the limo, so long as the alcohol is locked during the minors’ passenger status.
Jail: Most open container violations, including VC 23221(a) and 23221(b), are classified as infractions. This means that the crime is considered a lower level crime and does not require jail as a punishment. However, a minor in possession of an open container of alcohol while driving (or marijuana), could lead to actual incarceration in a local county jail (VC 23224). VC 23224 provides for up to a hundred eighty (180) days maximum jail sentence upon conviction.
Probation Sentence: A probation sentence is a period of supervision instead of jail. Probation sentences are common in VC 23224 cases, but a probation sentence is not guaranteed. Whether or not a defendant will receive a probation sentence after a VC 23224 conviction depends largely on the defendant’s criminal history, if any, and other factors. Some probation sentences will require the defendant to perform manual labor (work release) or house arrest (electronic monitoring) as a condition of probation.
Note: Probation sentences do not apply to VC 23221 infraction cases; the maximum punishment a defendant can receive in an infraction case is a monetary fine, a license suspension, and negative points on the driver’s DMV record.
Immigration Concerns: Defendant who are convicted of VC 23224 could face immigration issues, such as deportation from the country, because misdemeanor convictions, even low-level ones such as open container violations, are subject to negative immigration consequences, especially when the defendant has a criminal history that predates the VC 23224 conviction.
Other Punishments: In addition to the punishments listed above for VC 23221 through VC 23224, if found guilty, the defendant could face any of these additional penalties: Denial of entry into the U.S. military (Army, Air Force, Space Force, Navy, etc.), professional licensing issues (licensing for doctors, dentists, lawyers, therapist, teachers, nurses, etc.), vehicle impound for up to thirty (30) days, driver’s license suspension and points on the driver’s DMV record, court fines and fees, probation violations (applies to VC 23224 conviction where the defendant was on probation for a prior criminal offense) and more.
Exceptions: Open container laws make it a crime for a container of alcohol to be open, or even consumed, while driving. However, VC 23221 laws do not apply where the open container of alcohol is located in the trunk of the vehicle, or where the driver is an agent for hire, such as a limo driver, a bus driver, a cab driver, etc.
Temporary Possession: It is a defense to an open container violation to show that the defendant possessed the open container only for a moment and only out of necessity. For example, if a passenger of a motor vehicle realizes that his driver is drinking alcohol after the driver is already driving on a public road, it is a defense to an open container violation (for the passenger) if the passenger takes temporary possession of the driver’s open container of alcohol in order to prevent the driver from further endangering his passengers. This defense of temporary possession will apply only if the defendant takes possession of the open container for no longer than necessary to avoid a greater danger.
Note: Open container laws, including VC 23221, do not apply when the driver is driving on a private road, such as a driveway. Also, carrying marijuana while driving is not a crime if the marijuana (cannabis) is in a closed container and the defendant has a recommendation (REC) card (prescription) that allows him to possess the marijuana (Possession under one (1) ounce only).
To learn more about California open container laws, including VC 23221 & 23224, contact our criminal defense lawyers without delay. Our criminal attorneys offer free consultations every day of the week and we are experienced and successful in every San Bernardino County criminal court. Call today!
VC 23221(a) Driving while drinking alcohol
VC 23221(b) Passenger with open alcohol container
VC 23222(a) Possess open container while driving
VC 23224 Minor in possession of open container
VC 23222(b)(1) Posses cannabis while driving
VC 23140 Underage DUI
VC 23103 Wet Reckless
VC 23152(a) DUI
VC 23153(a) Felony DUI
VC 23222(b) Possession of Marijuana while Driving
VC 23225 Possess open container
PC 647(f) Drunk in Public