Can I get a DUI for having an open container in my car but not intoxicated? 46 Answers as of July 25, 2013

My boyfriend was pulled over right after the officer saw him opening a beer in the car. He hadn't even had a sip of it yet- can he be charged with a DUI?

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Law Offices of John Carney
Law Offices of John Carney | John Carney
He can be charged with a DWI if the officer believes he is impaired by alcohol. If he was not drinking he should take the breath test to prove it. Then he will only be charged with the open container charge.
Answer Applies to: New York
Replied: 7/24/2011
Law Offices of Scott Tibbedeaux
Law Offices of Scott Tibbedeaux | Scott Tibbedeaux
Possession of opened alcoholic beverage bottle or can while driving; Fine (a) No person shall have in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle, containing any alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed. No, technically you cannot have a DUI for having an open container. A DUI is driving under the influence. If your boyfriend was not under the influence, then it cant be a DUI. He can be cited with the attached code, which is possession of an opened alcoholic beverage while driving
Answer Applies to: California
Replied: 7/13/2011
Law Office of Peter F. Goldscheider
Law Office of Peter F. Goldscheider | Peter Goldscheider
He can be charged with anything at anytime by any prosecutor who thinks he can prove the case. Whether he can be convicted is another story. If the facts are what you say they are, it is doubtful there would be sufficient evidence to charge him regardless of what the cop recommends.
Answer Applies to: California
Replied: 6/30/2011
The Law Firm of David Jolly
The Law Firm of David Jolly | David Jolly
You boyfriend could be charged with DUI - but a DUI charge must be supported by probable cause to arrest and a BAC result (or refusal). If your boyfriend had no alcohol in his system (or very little) a DUI conviction is ultimately not very likely.
Answer Applies to: Washington
Replied: 6/29/2011
Law Office of Thomas A. Medford, Jr., PC
Law Office of Thomas A. Medford, Jr., PC | Thomas A. Medford, Jr.
Based on the facts as you have presented and if your boy friend had not consumed any alcoholic beverages that night it would appear that the state does not have a strong case. This may be a case the government may dismiss if an attorney marshaled the facts to show an absence of the necessary elements to support the DUI charge.
Answer Applies to: District of Columbia
Replied: 6/29/2011
    Law Office of Jonathan T. Sarre
    Law Office of Jonathan T. Sarre | Jonathan T. Sarre
    Sure, I suppose he can be charged with DUII, but convicted is an other matter. The State will have to produce some (actually lots of) other evidence to substantiate a DUII allegation. The evidence would be in the form of impairment such as field sobriety tests or a breath test result or something other than he opened up a beer.
    Answer Applies to: Oregon
    Replied: 6/29/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    No. A DWI offense requires that you were operating a motor vehicle while intoxicated and/or operating a motor vehicle with a blood alcohol content in excess of .08.
    Answer Applies to: Minnesota
    Replied: 6/28/2011
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    No but he can be charged with the crime called open intoxicants, which is having open intoxicants in a motor vehicle on the highway.
    Answer Applies to: Michigan
    Replied: 6/28/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    DUI is for driving under the influence, in the opinion of the arresting officer. If charged with that, you'll have to defend it on the facts. If serious about hiring counsel to help in this, and if this is in SoCal courts, feel free to contact me.
    Answer Applies to: California
    Replied: 6/27/2011
    Bloom Legal, LLC
    Bloom Legal, LLC | Seth J. Bloom
    In Louisiana, there is a state law prohibiting passengers from having open containers of alcohol in vehicles. The charges and penalties for this (generally a fine of $100 for a conviction) are separate from DWI charges. DWI is specifically the crime of operating a vehicle while maintaining a BAC of .08 or above for people of the legal drinking age of 21. If your boyfriend was not operating the vehicle nor intoxicated at the time of his arrest then it is very unlikely that he will be charged with DWI. If he has been charged with DWI then it may very well be possible to have the charges dismissed - this is something that a local DWI attorney will be able to assist you with. If you are seeking legal representation in this matter in Louisiana, we invite you to contact our firm at the information on this page for a free case evaluation.
    Answer Applies to: Louisiana
    Replied: 6/27/2011
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    If he was arrested he needs counsel to defend him against the charges. We can represent him.
    Answer Applies to: New York
    Replied: 6/27/2011
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    No, a DUI is chargeable only for operating a vehicle while under the influence of alcohol or drugs. The State must be able to prove you were impaired for a DUI, otherwise the charge would be transportation of open container of alcohol.
    Answer Applies to: Kansas
    Replied: 6/27/2011
    Pontrello Law
    Pontrello Law | William Pontrello
    Some police would arrest and let you get out of it. All they have to say is he smelled like alcohol, bloodshot eyes, slurred speech fumbled for his license and registration and then he has a DUI and open container charge!
    Answer Applies to: Florida
    Replied: 6/27/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    He can be charged with anything the cop wants to charge him with. The issue is whether the prosecutor can prove the charge.
    Answer Applies to: Michigan
    Replied: 7/11/2013
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    In Michigan, the answer would be no. You must be under the influence to be considered impaired or intoxicated. You should discuss this with your attorney in your jurisdiction to see whether this charge can be dismissed. You will however, have a problem with the open intoxicant in a motor vehicle charge.
    Answer Applies to: Michigan
    Replied: 6/27/2011
    Giannini Law Office, PC
    Giannini Law Office, PC | Robert Giannini
    If he has been arrested, then I think your question is not "can he be charged" (because he IS already charged), but rather whether he can be convicted of DUI. To be convicted it must be proven that he had a blood alcohol level higher than per se limit, or that he was under the influence to the extent he was less safe to drive. If the only evidence was that he had an open beer and was driving, then that is not enough evidence to sustain a conviction.
    Answer Applies to: Georgia
    Replied: 6/27/2011
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    He can be charged with open container., not a DUI.
    Answer Applies to: California
    Replied: 7/11/2013
    The Law Office of Lewis R. Rosenblum
    The Law Office of Lewis R. Rosenblum | Lewis Rosenblum
    It depends how old you and your boyfriend are. If you were not driving, then you can't be charged for DUI but you can be charged for having an open container which is a very insignificant offense. As for your boyfriend, if he is an adult he would only be charged if his blood alcohol level was over a .08. If he is under 21, he could be charged with a crime if he had any measurable amount of alcohol in his system while driving.
    Answer Applies to: California
    Replied: 6/27/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    Only if he was over the influence or affected by an intoxicant.
    Answer Applies to: Washington
    Replied: 6/27/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    Yes, he can certainly be charged. But if he hadn't yet had much to drink his blood alcohol content will be low. This will be verified by the breath test machine. He can then probably beat the charge. But there are a lot of other variables here that I don't know about. Please note the following necessary legal disclaimer: I have not given legal advice. I only give advice to my clients. I am not acting as your attorney. I have not yet agreed to represent you. Anything I have said is based on limited information and may be subject to change as more facts become known. Attorneys express opinions. Attorneys often disagree. If you want further information or independent verification of anything I have said then you should immediately consult another attorney. Never sit on your rights! I am admitted to practice law in New York State only and cannot practice law in any other State.
    Answer Applies to: New York
    Replied: 6/27/2011
    Law Office of Joseph A. Katz
    Law Office of Joseph A. Katz | Joseph A. Katz
    He can be charged (by a sleazy, dishonest cop, of which unfortunately, there are many, and a corrupt D.A.'s Office, of which unfortunately, there are many). That does not mean he can (or will) be convicted. Only an idiot would plead to a DUI under those circumstances. Fight the case all the way. Do not be a chump and do not succumb to threats.
    Answer Applies to: California
    Replied: 6/27/2011
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    A person can be charged with DUI if the officer making the arrest opines that the person driving is under the influence of alcohol, a controlled substances, or a combination of both.The fact that he had or was opening a container of an alcoholic beverage is one of the factors that he may use in deciding whether to arrest for the offense.If your boyfriend was not under the influence, and can prove that he was not, the fact that he was arrested does not mean he will be convicted.
    Answer Applies to: Alabama
    Replied: 6/27/2011
    Theodore W. Robinson, P.C.
    Theodore W. Robinson, P.C. | Theodore W. Robinson
    He can be charged with anything. Whether the cop can prove he was intoxicated is another story completely.It will depend upon whether he had more than .08 blood alcohol or not or was acting drunk while he was driving, whichhas wider application at times.Advise your boyfriend to hire a DWI lawyer right away or he could findhimself convicted of DWI, even though he wasn't driving while intoxicated. Good luck.
    Answer Applies to: New York
    Replied: 6/27/2011
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    Generally speaking, absolutely no, he cannot be charged with DUI. Merely opening a can of beer is not proof of being under the influence. However, if he had a sip of the beer, and was under the age of 21, then he could be charged under Illinois' zero tolerance law, but again, he had to consume some of the alcohol. You do not mention if he had been drinking BEFORE the stop in question. If that is the case, he could be charged with DUI, depending on what his physical condition was at that time. In any case, retain counsel to represent him. If what you say is true, the case should be dropped outright.
    Answer Applies to: Illinois
    Replied: 6/27/2011
    The Law Office of Rosanne Faul
    The Law Office of Rosanne Faul | Rosanne Faul
    He can be charged with anything, but they would still have to prove he was under the influence of alcohol and/or a drug, or that he was at a .08 level or higher.
    Answer Applies to: California
    Replied: 6/27/2011
    Law Offices of H. Frank Rubio
    Law Offices of H. Frank Rubio | Herman Frank Rubio
    The question is whether your boyfriend was driving under the influence. Having an open container in the car is illegal. However, for DUI, one must have more than a .08 blood alcohol level in their bloodstream or influenced by the consumption of alcohol to the extent that they cannot safely operate a motor vehicle. Simply seeing someone open a container of beer is not sufficient to prove the charge of DUI. There has to be proof of the above factors.
    Answer Applies to: Florida
    Replied: 6/27/2011
    Law Offices of Steven R. Decker
    Law Offices of Steven R. Decker | Steven Decker
    There is not evidence of a DUI, however , open transportation of alcohol is a traffic offense which can result in a fine and / or a conviction on your driving record.
    Answer Applies to: Illinois
    Replied: 6/27/2011
    Law Office of Michael Morgan, l.L.C.
    Law Office of Michael Morgan, l.L.C. | Michael Morgan
    It is a different offense to have an open container and there normally would need to be more evidence to support a DUI charge.
    Answer Applies to: Washington
    Replied: 6/27/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    It depends if he took a chemical test. If he did, and it showed no alcohol, then he has nothing to worry about. If, on the other hand, he refused to take a chemical test, and the cops assumed he was intoxicated, then the prosecutor who reviews the case may still decide to press charges based on things such as appearance, smell, performance on FSTs...etc.
    Answer Applies to: California
    Replied: 6/27/2011
    Law Office of Barry Melton
    Law Office of Barry Melton | Barry Melton
    In California, the test for whether or not a DUI can be filed is (1) If the officer conducted field sobriety tests and, based upon such tests it was the officer's judgment your boyfriend was impaired to the degree he could not safely operate a motor vehicle; or (2) whether or not your boyfriend had a .08 blood alcohol content (or above .08) when submitting to a breath or blood test, or both. Having an open container in a car really has nothing to do with a DUI; however, the fact that a law enforcement officer saw your boyfriend open a can of beer before he stopped him would justify the legality of the stop. Having an open container in the car is a separately chargeable offense (Vehicle Code section 23222(a)) and can be charged in addition to a DUI. If your boyfriend had not been drinking at all during the period prior to being pulled over, and was not under the influence of alcohol or drugs when he was pulled over, the sole charge should be violation of Vehicle Code section 23222(a).
    Answer Applies to: California
    Replied: 6/27/2011
    Wallin & Klarich: A Law Corporation
    Wallin & Klarich: A Law Corporation | Paul Wallin
    If you are driving a vehicle and have an open container in your car the police officer that stops you may suspect you are driving under the influence. This will likely lead to the officer asking that you take a breath or blood test. In addition the officer will have you take a field sobriety test. If the officer believes from all of these tests that you were under the influence he may arrest you for a DUI.
    Answer Applies to: California
    Replied: 6/27/2011
    The Chastaine Law Office
    The Chastaine Law Office | Michael Chastaine
    If your version is correct then no. You are not guilty of DUI if your not intoxicated or below .08 BAC.
    Answer Applies to: California
    Replied: 6/27/2011
    Law Offices of Phil Hache
    Law Offices of Phil Hache | Phil Hache
    He can be charged with a DUI, but it doesn't mean that he should, and should fight that charge. An open container is the charge that would make more sense, but that doesn't mean that is how it is going to play out. I can be reached through my website if you want to discuss the case in further detail. If he is charged with a DUI, or even if he is just charged with an open container, he should speak with a DUI attorney as both can have serious consequences.
    Answer Applies to: California
    Replied: 6/27/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    In order to get a DUI your boyfriend would have to be driving a motor vehicle on a public road while intoxicated, i.e. over the legal limit. Simply having an open beer in the car is not enough unless he was drunk and driving. However, he can be charged with having an open container of alcohol in the car, which is a misdemeanor.
    Answer Applies to: Michigan
    Replied: 6/27/2011
    West law Office
    West law Office | Russell West
    Driving with an open container is not grounds for a DUI. This would be a traffic infraction for having an open container while driving. However this would be probable cause for the officer to take additional steps to determine if the driver is under the influence which could include field sobriety tests and Breathalyzer tests. If your boyfriend had not drank any or much he should not be charged with DUI but may get the infraction.
    Answer Applies to: Washington
    Replied: 6/27/2011
    Gregory Casale Attorney at Law
    Gregory Casale Attorney at Law | Gregory Casale
    The police can charge anyone with any crime if they have probable cause. Probable cause is a very low standard of proof. However for a conviction, you must be found guilty beyond a reasonable doubt. This is clearly a much higher standard of proof. If you have been charged with a crime you should consult with an attorney.
    Answer Applies to: Massachusetts
    Replied: 6/27/2011
    Law Office of Maureen Furlong Baldwin
    Law Office of Maureen Furlong Baldwin | Maureen Furlong Baldwin
    Before the police arrest on a DUI, you are given field sobriety tests, including a roadside intoxylizer unless you refuse all tests. If your blood alcohol is 00, then the police will not arrest you for DUI-alcoholunless they suspect some other intoxicant. If he has been arrested and has a .00 and no drugs in his system, he will certainly win any case that is charged and I would not expect the DA to charge a case with no evidence
    Answer Applies to: California
    Replied: 6/27/2011
    Law Offices of Matthew Murillo
    Law Offices of Matthew Murillo | Matthew Murillo
    Being arrested for a DUI, being charged with a DUI in court, and being convicted of a DUI are all different. If your boyfriend was arrested for DUI, it is possible the DA will file a DUI, but it is also possible that the DA files other charges as well - depending on what they believe can be proven. That said, even if the DA files DUI charges, that doesn't automatically mean they can prove all the facts necessary for a conviction.
    Answer Applies to: California
    Replied: 6/27/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    It is illegal to have an open container in the car so having one is definitely cause to stop someone. If he is under age and it is zero tolerance on drinking and driving, then having one drink is sufficient to charge and convict him of DUI. If he is not under age, then whether he can be convicted of DWI is based on the facts - was he intoxicated at the time of driving. Opening one beer and having had nothing else to drink will not be sufficient to convict him.
    Answer Applies to: Texas
    Replied: 6/27/2011
    Law Office of Andrew Subin
    Law Office of Andrew Subin | Andrew Subin
    He is not DUI unless he has consumed alcohol. If he did not have a sip, and he was not intoxicated, he should be able to beat the dui.
    Answer Applies to: Washington
    Replied: 6/27/2011
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    In order to be charged with DUI, they would have to prove he drove under the influence or with a blood alcohol level over 0.08%. There are separate charges for having an open container in a vehicle, but they are NOT DUI charges. If they arrested him for DUI and took his license, he only has 10 days from the date of the arrest to challenge the DMV in a license suspension hearing.
    Answer Applies to: California
    Replied: 6/27/2011
    Fitzpatrick, Mariano, & Santos, PC
    Fitzpatrick, Mariano, & Santos, PC | Raymond J. Savoy
    If the police officer has provable cause he can make an arrest. A breath test will determine if he is intoxicated. If a person is not intoxicated the court may dismiss the charges.
    Answer Applies to: Connecticut
    Replied: 6/27/2011
    Law Offices of Christopher Jackson
    Law Offices of Christopher Jackson | Christopher L. Jackson
    He can be charged but he should be able to win if he did not have anything to drink.
    Answer Applies to: Kentucky
    Replied: 7/25/2013
    Rothstein Law PLLC
    Rothstein Law PLLC | Eric Rothstein
    Anything is possible. Did the officer small alcohol on his breath? Did he drive erratically? Did the officer arrest/cite him for DWI. If he didn't, he probably isn't being charged with it.
    Answer Applies to: New York
    Replied: 7/25/2013
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