Can a sober driver be arrested if his passengers are all drinking in the car? 55 Answers as of June 09, 2013

Me and 5 friends are going somewhere an hour away. They all want to drink in the car ride up there, but I don't want to. So I was thinking I would drive, but if we got pulled over and they were drinking open beer cans, while I was COMPLETELY sober, would I be arrested, even if I was the only one doing the right thing?

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Edward  D. Dowling IV Attorney at Law
Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
I would need all the detttails of the case. For example how old are the other passengers. if they are under legal drinking age you could be in trouble for contrubuting to the delinquency of a minor. There may be other charges that could be brought depending on all the circumstances.
Answer Applies to: New York
Replied: 10/26/2011
Anderson Law Office
Anderson Law Office | Scott L. Anderson
You can be charged with allowing an open bottle offense which is a misdemeanor offense punishable by a maximum of 90 days in jail and/or a $1000 fine. If they are only intoxicated and no alcohol is in the car or on their person then you would likely not be charged.
Answer Applies to: Minnesota
Replied: 9/28/2011
Law Office of Thomas A. Medford, Jr., PC
Law Office of Thomas A. Medford, Jr., PC | Thomas A. Medford, Jr.
If the sober driver operated the vehicle in an unsafe manner a police officer can pull the vehicle over. If the driver was in fact stone cold sober the most he could expect to get would be the traffic tickets for the violations that first drew the officer's attention.
Answer Applies to: District of Columbia
Replied: 9/2/2011
Law Offices of John Carney
Law Offices of John Carney | John Carney
If your passengers have open containers of alcohol all of the occupants can be charged. You can only be charged with DWI if the officer believes you were intoxicated.
Answer Applies to: New York
Replied: 9/2/2011
Law Office of Richard Williams
Law Office of Richard Williams | Richard Williams
You may be arrested for DUI, but you should have an excellent chance of being acquitted, especially if you took the breath test and passed with .000.
Answer Applies to: Alabama
Replied: 8/31/2011
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    The law prohibits having or transporting open containers of alcohol in a moving vehicle when those containers are in the proximity of the driver. You could be charged with unlawfully transporting open alcohol containers.
    Answer Applies to: Kansas
    Replied: 8/31/2011
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    As the driver of a vehicle, you are responsible for your passengers. If you allow them to drink in the car, you could be charged.
    Answer Applies to: Michigan
    Replied: 8/31/2011
    Cornish, Crowley, Rockafellow, & Sartz, PLLC
    Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
    You are risking an open intox charge, open alcohol in a motor vehicle related charges, and potential accomplice liability, so yes, you are risking criminal charges, if, as a driver, you allow your passengers to drink in the vehicle. The "right thing" would not be drinking alcohol or allowing drinking in a motor vehicle.
    Answer Applies to: Michigan
    Replied: 8/31/2011
    Connell-Savela
    Connell-Savela | Jason Savela
    Open container law may apply to you as well as them. But, it is not a DUI. If you are sober, you are not DUI.
    Answer Applies to: Colorado
    Replied: 8/31/2011
    Law Office of Jonathan T. Sarre
    Law Office of Jonathan T. Sarre | Jonathan T. Sarre
    I wouldn't think so, you all might get open container tickets and possibly minor in possession tickets if you or some of your passengers are not of the legal drinking age. Even if you aren't drinking, you may get tickets as well because a legal theory called "constructive possession" could potentially apply.
    Answer Applies to: Oregon
    Replied: 8/31/2011
    Law Office of Thomas F. Mueller
    Law Office of Thomas F. Mueller | Thomas Mueller
    You probably would not be arrested but it is a violation of the law to drive while the passengers are drinking (open container).
    Answer Applies to: California
    Replied: 8/31/2011
    Dennis Roberts, a P.C.
    Dennis Roberts, a P.C. | Dennis Roberts
    Probably - open container violation. Don't let your buddies drink in your car. They can drink before you go and after you get there. Unless they are stone alcoholics they can make it for an hour without a drink. If they can't you don't need friends like this.
    Answer Applies to: California
    Replied: 8/31/2011
    Jules N. Fiani, Attorney at Law
    Jules N. Fiani, Attorney at Law | Jules Fiani
    Yes.
    Answer Applies to: Michigan
    Replied: 6/9/2013
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    It is against the law in Washington to have an open container of alcohol in a vehicle other than a charter bus or other commercial vehicle where the driver does not have access to the alcohol. If you all pile into a car and everyone but you start drinking, you all could be cited for open container. The bigger issue though is that your friends don't want to or can't take an hour car ride without drinking. That doesn't bod well for them.
    Answer Applies to: Washington
    Replied: 8/30/2011
    Law Offices of Jeffery A. Cojocar, PC
    Law Offices of Jeffery A. Cojocar, PC | Jeffery A. Cojocar
    Yes he could be if there were minors involved.
    Answer Applies to: Michigan
    Replied: 8/30/2011
    LynchLaw
    LynchLaw | Michael Thomas Lynch
    It can be argued you were not doing the right thing. Just as with seat belt usage, the driver/operator of the vehicle is responsible. If your passengers are drinking in a vehicle you are driving, then you are guilty of driving with an open container. As the operator it is your duty to either have the passenger with the open container exit the vehicle or remove the open container. Hard lesson, I know.
    Answer Applies to: California
    Replied: 8/30/2011
    Judin & Rogers
    Judin & Rogers | Hank Judin
    Right or wrong you can be arrested. There is an old saying,"you can beat the rap, not the ride". Get a good lawyer for some help.
    Answer Applies to: Texas
    Replied: 8/30/2011
    Timothy J. Thill P.C.
    Timothy J. Thill P.C. | Timothy J. Thill
    I doubt you were arrested for DUI, if completely sober, however, you were transporting open alcohol in your vehicle, which is a violation of the law, at least in Illinois, where I practice.
    Answer Applies to: Illinois
    Replied: 8/30/2011
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    You don't say how old the people are that will be drinking. If everyone is under age, then yes, you could get into trouble. If everyone is over age 21 and you are driving and are sober, you are the "designated driver" and you should be fine.
    Answer Applies to: Washington
    Replied: 8/30/2011
    Grantland, Blodgett, Shaw & Abel
    Grantland, Blodgett, Shaw & Abel | Gregory M. Abel
    If you consumed NO alcohol, then the only charge would be the infraction of "open container".
    Answer Applies to: Oregon
    Replied: 8/30/2011
    Michael R. Nack, Attorney at Law
    Michael R. Nack, Attorney at Law | Michael R. Nack
    Many jurisdictions have laws against having open containers of alcohol (including beer) in the car, so it is possible that you could be charged with violating such a law even if you were not drinking.
    Answer Applies to: Missouri
    Replied: 8/30/2011
    Brucar & Yetter, P.C.
    Brucar & Yetter, P.C. | Wayne Brucar
    You could indeed be arrested for "open alcohol" in your car even if you were not the one drinking. In Illinois, having open alcohol in your car is a Class A misdemeanor punishable by a maximum of 364 days in jail and a $2500.00 fine. Please understand that answering this doesn't create an attorney/client relationship between us, and as hard as I try to answer your question well, it isn't legal advice. No matter how much information you put into a question, the answers you are going to get are still going to be vague. It is in your interest to contact a lawyer, most of whom will do a free consultation. Even 15 minutes with a lawyer is going to produce a more specific answer to your problem.
    Answer Applies to: Illinois
    Replied: 8/30/2011
    Dunnings Law Firm
    Dunnings Law Firm | Steven Dunnings
    You were driving, you are responsible for what goes on in the car. If there was open alcohol, you are responsible.
    Answer Applies to: Michigan
    Replied: 8/30/2011
    Watkins Law Office
    Watkins Law Office | Bob Watkins
    Open alcohol in the car is not legal. Nor is it legal for someone under the age of 21 to be transporting closed alcohol unless there is a parent in the car.
    Answer Applies to: New Hampshire
    Replied: 8/30/2011
    John Segelbaum, P.S.
    John Segelbaum, P.S. | John Segelbaum
    It is illegal to have open containers of alcohol in a vehicle. If you are driving you will be charged.
    Answer Applies to: Washington
    Replied: 8/30/2011
    Shane Law Office
    Shane Law Office | Robert J. Shane
    Yes, a sober driver can be be charged with an open bottle misdemeanor offense for allowing passengers to drink alcohol in the car. The officer is required by law to release you on citation instead of arresting you unless you have a history of outstanding bench warrants for failure to make your court appearances.
    Answer Applies to: Minnesota
    Replied: 8/30/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    I cannot find anything in the Vehicle and Traffic Law that prohibits an open container in a motor vehicle. I thought I would, but I didn't. There may be local ordinances that prohibit it. It just doesn't sound like a good idea to me anyway.
    Answer Applies to: New York
    Replied: 8/30/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    It is illegal to have open intoxicants in a motor vehicle. If you are in control of the vehicle you could be charged with having open intoxicants even if you were not drinking.
    Answer Applies to: Michigan
    Replied: 8/30/2011
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    As the driver of the vehicle, you are responsible for what occurs inside the vehicle. In the specific case you describe, you could be ticketed for having an open alcohol container in the vehicle even if you were not drinking it. However that is usually a situation where you would be given a citation for the offense and not placed under arrest.
    Answer Applies to: Minnesota
    Replied: 8/30/2011
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    You may get a ticket for an open container, but as long is everything else is legal then you should not have to worry.
    Answer Applies to: Nebraska
    Replied: 8/30/2011
    Halprin Law Office
    Halprin Law Office | Richard Halprin
    Don't do it. Open bottles of alcohol are illegal in a motor vehicle and if you are stopped it is possible that you will all be charged. Sobriety is not a defense.
    Answer Applies to: Michigan
    Replied: 8/30/2011
    Law Offices of Martina A. Vigil, PC
    Law Offices of Martina A. Vigil, PC | Martina A. Vigil
    If you have not consumed alcohol to the point where your driving is affected or your BAC is .08% you will not be DUI. However, you may get a ticket for having an open container in a vehicle.
    Answer Applies to: California
    Replied: 8/30/2011
    Law Office of Roianne H. Conner
    Law Office of Roianne H. Conner | Roianne Houlton Conner
    If you are of age and I mean 21 and the other people in your car are of drinking age then you cannot be arrested.
    Answer Applies to: Alabama
    Replied: 8/30/2011
    Klisz Law Office, PLLC
    Klisz Law Office, PLLC | Timothy J. Klisz
    Should not be, with the exception of open containers in the car, which could arguably be in your possession.
    Answer Applies to: Michigan
    Replied: 8/30/2011
    Nichols Law Firm
    Nichols Law Firm | Michael J. Nichols
    Yes. Police have the power to arrest for anything. The question is whether it is a legal arrest.
    Answer Applies to: Michigan
    Replied: 8/30/2011
    Gigstad Law Office LLC
    Gigstad Law Office LLC | Robert Gigstad
    You can be held liable for T.O.C., Transporting of liquor in an open container, which is illegal in the state of Kansas, and is a class C misdemeanor.
    Answer Applies to: Kansas
    Replied: 8/30/2011
    Harrison & Harrison
    Harrison & Harrison | Samuel Harrison
    You can't be charged with DUI, but you were the driver, so you can be charged under the open container law.
    Answer Applies to: Georgia
    Replied: 8/30/2011
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    Yes you could be arrested for open intoxicants in the vehicle. There is not supposed to be any open containers with alcohol in a vehicle that is being operated,
    Answer Applies to: Michigan
    Replied: 8/30/2011
    Law Offices of Andrew D. Myers
    Law Offices of Andrew D. Myers | Andrew D. Myers
    Drinking in car by anyone = NOT the right thing. I know you think otherwise. Violates the open container law. Failure to operate in control. Driving while people drinking and becoming intoxicated = reckless operation. Probably about a half a dozen other charges a creative police officer could come up with.
    Answer Applies to: New Hampshire
    Replied: 8/30/2011
    Khayoumi Law Firm
    Khayoumi Law Firm | Salim A. Khayoumi
    Yes he can be arrested for several criminal law violations. The fact that he is allegedly sober (or "DD") can be raised; however, it would be more relevant had D been charged with a DUI/ DWI charge. A few examples of the charges D should be expecting; include, but are not limited to the following: (1) "M.I.P." (Minor in Possession) if underage; (2) "Contributing to the Delinquency of a Minor" (felony - 4th degree) if anyone in the vehicle is under 21 years of age; and/or (3) "Open Container" (see your specific state's open container statute). Under NM law, D would meet an exception to the open container law if D was a priest, merely delivering sacramental wine to church. Which is highly unlikely since sober driver (D)'s vehicle is full of beer, not wine.
    Answer Applies to: New Mexico
    Replied: 8/30/2011
    Law Office of Barry Melton
    Law Office of Barry Melton | Barry Melton
    The driver of a car is in presumptive possession and control of the car and its contents. If there's an open container in the car, the driver can be charged with a violation of Vehicle Code section 23223, subdv. (a) and the passengers are chargeable under subdv. (b). A presumption is not the same as actual proof; but typically it requires the driver to bring an affirmative defense. Among the defenses available to the driver would be lack of knowledge that the passengers were in possession (which doesn't sound like it applies in your case). It would be best if you consulted with a lawyer, as you may have other defenses available. In any event, the fact the you had not been drinking might be sufficiently favorable to get a prosecutor to dismiss, divert or reduce your charges.
    Answer Applies to: California
    Replied: 8/30/2011
    Law Office of Tracey S. Sang
    Law Office of Tracey S. Sang | Tracey Sang
    Interesting question. I would say the answer is that you are not guilty of anything other than letting your friends have open containers. Any officer who pulls you over, however, will very likely test you for DUI and - even though you pass - it will be stressful and potentially bad. Better for your friends to do their drinking before getting in the car. It's only an hour drive; they should be able to handle that!
    Answer Applies to: California
    Replied: 8/30/2011
    Law Office of Joseph A. Katz
    Law Office of Joseph A. Katz | Joseph A. Katz
    To Whom It May Concern: You will not be cited or arrested for Driving Under the Influence, but I can definitely see you cited for having an open container of alcohol in a vehicle.
    Answer Applies to: California
    Replied: 8/30/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    The driver of a vehicle can be charged with open intox if there are open containers of alocol present in the vehicle in an open area of the vehicle where access is ready. It is a misdemeanor.
    Answer Applies to: Michigan
    Replied: 8/30/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    No there is no violation of any law. In fact, you are doing something responsible by helping to drive the "drunk" folks, yourself being sober.
    Answer Applies to: California
    Replied: 8/30/2011
    The English Law Firm
    The English Law Firm | Robert English
    Potentially yes for open container.
    Answer Applies to: California
    Replied: 8/30/2011
    The Law Firm of David Jolly
    The Law Firm of David Jolly | David Jolly
    A driver cannot be arrested, lawfully, for DUI if he/she is sober. If you are stopped the officer may investigate due to the odor of alcohol in the car, but a good officer, repeat, a good officer, will not arrest you if you are completely sober (translation - absolutely no alcohol in your system). However, if you are "sober" but have had a drink or two, don't drink. It's simply too risky under this set of facts.
    Answer Applies to: Washington
    Replied: 8/30/2011
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