The Texas open container law is a fine-only offense on its own — but it has an outsized effect on a DWI case, and it is one of the most common reasons a traffic stop escalates into a DWI investigation.
What the Statute Says
A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated, is stopped, or is parked.
"Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, has been opened, has a broken seal, or the contents of which are partially removed.
"Passenger area" means the area designed for the seating of the operator and passengers. It does not include:
- a glove compartment or similar storage container that is locked;
- the trunk of a vehicle; or
- the area behind the last upright seat if the vehicle does not have a trunk.
"Public highway" covers the entire width between the boundary lines of any publicly maintained way open for motor vehicle travel, including the right-of-way.
Penalty — and the DWI Consequence
Standing alone, an open container violation is a Class C misdemeanor, a fine of up to $500.
Under Section 49.04(c), if it is shown that at the time of a first-offense DWI the person possessed an open container in their immediate possession, the minimum term of confinement rises from 72 hours to six days. The open container allegation is pleaded in the charging instrument, and defeating it changes the minimum sentence. See our DWI open container page.
Statutory Exceptions
The offense does not apply to a passenger in the passenger area of a vehicle designed, maintained, or used primarily for the transportation of persons for compensation — buses, taxis, limousines — or to a passenger in the living quarters of a motorhome or self-contained camper.
Defenses
Location of the container. The trunk, a locked glove box, and the area behind the last upright seat are all outside the statute. Where an officer reports finding a container "in the vehicle," where exactly it was found is the case.
Knowing possession. The State must prove the accused knowingly possessed it. In a car with several occupants, a container on the floor or in a door pocket is not automatically attributable to the driver — the affirmative-links analysis applies.
Not open, not alcoholic, not partially removed. A sealed container, an empty container with no contents, and non-alcoholic beverages fall outside the definition.
Not on a public highway. Private property, private parking areas, and private drives are outside the statute.
The stop. As with any traffic case, an unlawful stop suppresses everything found afterward — including the container and the DWI investigation that followed it.
Related
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.