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Could a passenger's open container get you charged with DUI?

Yes. Under Virginia law, if a partially-consumed container of alcohol is found in the passenger area of your vehicle and you seem drunk to a cop, the law begins with the assumption that you're intoxicated. This is an aspect of Virginia's "open container" law, § 18.2-323.1.

Now, we know that the fact that someone was drinking in your car doesn't necessarily mean that you're drinking, too. Virginia's open container law recognizes that fact but puts the burden on you to prove you weren't intoxicated. This is called a "rebuttable presumption," and here's how it works. The law assumes you were consuming alcohol while driving if you're pulled over:

  • With an open alcohol container anywhere within reach of the driver, and
  • The alcohol has been partially consumed, and
  • Your appearance, speech, conduct, alcoholic odor or other physical characteristics would lead a reasonable officer to suspect you're drunk.

Since that assumption is "rebuttable," however, you can go to trial and present any evidence you have (including your truthful memory and the testimony of your passengers) showing you were not intoxicated. Then, a judge or jury will decide the truth.

The good news is that a § 18.2-323.1 charge is a Class 4 misdemeanor, while a standard DUI charge (under § 18.2-266) would be a Class 1 misdemeanor, at the least. A Class 1 misdemeanor DUI carries a mandatory minimum fine of $250, along with the possibility of a year in jail and/or a fine of up to $2,500, plus innumerable other costs and charges. A Class 4 misdemeanor is only punishable by a $250 fine.

Regardless of your specific charges, however, Virginia takes drinking and driving very seriously. Don't assume that being charged with an open container violation means you won't have to deal with the collateral damage of a DUI. Never plead guilty before discussing your case with an attorney. 

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Sevila, Saunders, Huddleston & White
30 North King Street
Leesburg, VA 20176

Toll Free: 800-239-4122
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