Posted: 10/27/2014 10:22:06 AM EDT
| Simple question: If I'm driving in VA, are my passengers allowed to drink alcohol? It seems like the answer is yes. Any insight? |
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https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-323.1
B. A rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open container has been at least partially removed and (iii) the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage. For the purposes of this section: "Open container" means any vessel containing an alcoholic beverage, except the originally sealed manufacturer's container. "Passenger area" means the area designed to seat the driver of any motor vehicle, any area within the reach of the driver, including an unlocked glove compartment, and the area designed to seat passengers. This term shall not include the trunk of any passenger vehicle, the area behind the last upright seat of a passenger van, station wagon, hatchback, sport utility vehicle or any similar vehicle, the living quarters of a motor home, or the passenger area of a motor vehicle designed, maintained or used primarily for the transportation of persons for compensation, including a bus, taxi, or limousine, while engaged in the transportation of such persons. ETA: not an attorney, here is a link to an attorney's blog http://www.andrewflusche.com/blog/beware-of-virginias-open-container-law/ |
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The answer is no, they are not. But not because of 18.2-323.1 (Open Container), which just applies to the driver.
The applicable code section is: 4.1-308 Drinking Alcoholic Beverages in Public A car is considered public. Think 'within the public view', rather than 'in public'. It will make it easier to see where the code considers to be a public place. Yes, even a front yard on private property is considered 'in public' for purposes of this code section. § 4.1-308. Drinking alcoholic beverages, or offering to another, in public place; penalty; exceptions. A. If any person takes a drink of alcoholic beverages or offers a drink thereof to another, whether accepted or not, at or in any public place, he shall be guilty of a Class 4 misdemeanor. B. This section shall not prevent any person from drinking alcoholic beverages or offering a drink thereof to another in any rooms or areas approved by the Board in a licensed establishment, provided such establishment or the person who operates the same is licensed to sell alcoholic beverages at retail for on-premises consumption and the alcoholic beverages drunk or offered were purchased therein. C. This section shall not prevent any person from drinking alcoholic beverages or offering a drink thereof to another in any room or area approved by the Board at an event for which a banquet license or mixed beverage special events license has been granted. Nor shall this section prevent, upon authorization of the licensee, any person from drinking his own lawfully acquired alcoholic beverages or offering a drink thereof to another in approved areas and locations at events for which a coliseum or stadium license has been granted. D. This section shall not prevent any person from drinking alcoholic beverages or offering a drink thereof to another on a chartered boat being used for the transportation of passengers for compensation which is not licensed by the Board and which does not sell alcoholic beverages. (Code 1950, § 4-78; 1956, c. 23; 1972, c. 143; 1977, c. 439; 1979, c. 622; 1986, c. 113; 1988, c. 893; 1989, c. 42; 1990, c. 932; 1993, c. 866.) |
and had some references.
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Do any states still allow open containers? It used to be that Indiana and Texas were the only ones, and I think they both outlawed it. The feds rammed it down everyone's throat. Virginia did not have one for many years. Even the driver could drink a beer, though it was like waving a red flag in front of a bull if a cop saw you. |
| Not that I speak from experience or anything, but 2 instances I can dream up tell me that if everyones shit is squared away, and having retired fed leos in the truck helps, that the cops really don't give a shit as long as the driver is sober and the passengers aren't being rowdy. |
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The answer is no, they are not. But not because of 18.2-323.1 (Open Container), which just applies to the driver. The applicable code section is: 4.1-308 Drinking Alcoholic Beverages in Public Most people completely overlook that one because it's in an administrative title of the Code (and not in 18.2). That said, I've never seen or heard of it being enforced, at least not formally by arrest or summons, and it gets flagrantly violated all the time. DIP seems to be the only thing that gets people in trouble in this realm. |
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Most people completely overlook that one because it's in an administrative title of the Code (and not in 18.2). That said, I've never seen or heard of it being enforced, at least not formally by arrest or summons, and it gets flagrantly violated all the time. DIP seems to be the only thing that gets people in trouble in this realm. Quoted:
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The answer is no, they are not. But not because of 18.2-323.1 (Open Container), which just applies to the driver. The applicable code section is: 4.1-308 Drinking Alcoholic Beverages in Public Most people completely overlook that one because it's in an administrative title of the Code (and not in 18.2). That said, I've never seen or heard of it being enforced, at least not formally by arrest or summons, and it gets flagrantly violated all the time. DIP seems to be the only thing that gets people in trouble in this realm. It's often used as a PC mechanism to hold onto passengers, but hardly ever charged. If they're acting dumb enough to catch a charge at that point, it's usually the DIP (because rarely are they drinking in public, acting an ass, AND not already drunk). I started out working in a college town, we used the 4.1 chapter regularly. Takeaway point here is the police can and will lawfully detain you if you are consuming alcohol in a car, even as a passenger. Don't want the cops in your life? Don't invite them. Best not to give them a reason to be able to mess with you. 
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Quoted: It's often used as a PC mechanism to hold onto passengers, but hardly ever charged. If they're acting dumb enough to catch a charge at that point, it's usually the DIP (because rarely are they drinking in public, acting an ass, AND not already drunk). I started out working in a college town, we used the 4.1 chapter regularly. Takeaway point here is the police can and will lawfully detain you if you are consuming alcohol in a car, even as a passenger. Don't want the cops in your life? Don't invite them. Best not to give them a reason to be able to mess with you. Quoted: Quoted: Quoted: The answer is no, they are not. But not because of 18.2-323.1 (Open Container), which just applies to the driver. The applicable code section is: 4.1-308 Drinking Alcoholic Beverages in Public Most people completely overlook that one because it's in an administrative title of the Code (and not in 18.2). That said, I've never seen or heard of it being enforced, at least not formally by arrest or summons, and it gets flagrantly violated all the time. DIP seems to be the only thing that gets people in trouble in this realm. It's often used as a PC mechanism to hold onto passengers, but hardly ever charged. If they're acting dumb enough to catch a charge at that point, it's usually the DIP (because rarely are they drinking in public, acting an ass, AND not already drunk). I started out working in a college town, we used the 4.1 chapter regularly. Takeaway point here is the police can and will lawfully detain you if you are consuming alcohol in a car, even as a passenger. Don't want the cops in your life? Don't invite them. Best not to give them a reason to be able to mess with you. |
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Curious question based on this. Is there a difference between a parked and a moving vehicle based on this code? I ask based on the premise of being in a parked RV, but would be curious about the thoughts on car/truck as well. Quoted:
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The answer is no, they are not. But not because of 18.2-323.1 (Open Container), which just applies to the driver. The applicable code section is: 4.1-308 Drinking Alcoholic Beverages in Public Most people completely overlook that one because it's in an administrative title of the Code (and not in 18.2). That said, I've never seen or heard of it being enforced, at least not formally by arrest or summons, and it gets flagrantly violated all the time. DIP seems to be the only thing that gets people in trouble in this realm. It's often used as a PC mechanism to hold onto passengers, but hardly ever charged. If they're acting dumb enough to catch a charge at that point, it's usually the DIP (because rarely are they drinking in public, acting an ass, AND not already drunk). I started out working in a college town, we used the 4.1 chapter regularly. Takeaway point here is the police can and will lawfully detain you if you are consuming alcohol in a car, even as a passenger. Don't want the cops in your life? Don't invite them. Best not to give them a reason to be able to mess with you. Not really. The difference would be more like WHERE the vehicle is parked, or WHERE it is moving. -Public street - public, whether parked or moving. -Parking lot open to the public, such as Walmart - public, hands down, whether parked or moving. -Back 40 of a farm is probably going to be private, whether car is parked or moving. Quite a few grey areas in between, such as parked in your yard? Is that public or private? Depends on whether it's within the public view, whether you are in the backyard, front yard, what measures you've taken to protect the privacy within that yard (fences, hedges, etc). Really gets into a discussion based on the totality of the circumstances. RV changes things significantly, as this could be argued that it is a residence. Even if it is a temporary residence, like a hotel room or a tent, your 4th Amendment protections are strongest in your home. Is the drinking occurring inside the residential part of the RV, or in the front seat visible to the public? Is the RV parked and encamped, or is it moving down the road? I'd be interested in seeing how Carrol is applied to RV's. I would imagine that while in movement on the public road, they would be 'automobiles', but while parked and encamped they would be 'residences'. Very tricky. dbrowne, thoughts? |
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The whole "in public" thing has been addressed by the Court of Appeals here in Virginia, at least as it applies to DIP. I would assume a similar analysis would apply to the ABC code about consuming in public.
I don't have the case(s) handy, but the gist of it is that if you're within view and/or earshot of public areas - even if you're actually in private property, like your front porch - then you are "in public," as the statutes are intended to protect the delicate flowers of the world from your debauchery. So on the vehicle question, if I understand it right, it would depend on where you were parked and whether you were in view and/or earshot of any public spaces (e.g., sidewalks, roads, etc.). Inside of an RV with the blinds closed is an interesting question. I don't want to guess on that, so I won't, but I will relate a funny story about that issue. I was at the Supreme Court of Virginia 2 or 3 years ago waiting to argue an appeal in a civil case, and the case being heard before mine involved the issue of DUI and the whole "keys in the ignition" being enough to constitute "operating" a motor vehicle. One of the justices wondered aloud whether he'd go to jail if he was at a UVA football tailgate, had a couple drinks, and then turned the ignition in his RV to the "accessory" position so he could listen to the radio. Everyone laughed, but then realized it was kind of a problem. |
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Quoted: The whole "in public" thing has been addressed by the Court of Appeals here in Virginia, at least as it applies to DIP. I would assume a similar analysis would apply to the ABC code about consuming in public. I don't have the case(s) handy, but the gist of it is that if you're within view and/or earshot of public areas - even if you're actually in private property, like your front porch - then you are "in public," as the statutes are intended to protect the delicate flowers of the world from your debauchery. So on the vehicle question, if I understand it right, it would depend on where you were parked and whether you were in view and/or earshot of any public spaces (e.g., sidewalks, roads, etc.). Inside of an RV with the blinds closed is an interesting question. I don't want to guess on that, so I won't, but I will relate a funny story about that issue. I was at the Supreme Court of Virginia 2 or 3 years ago waiting to argue an appeal in a civil case, and the case being heard before mine involved the issue of DUI and the whole "keys in the ignition" being enough to constitute "operating" a motor vehicle. One of the justices wondered aloud whether he'd go to jail if he was at a UVA football tailgate, had a couple drinks, and then turned the ignition in his RV to the "accessory" position so he could listen to the radio. Everyone laughed, but then realized it was kind of a problem. |
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Quoted:
Most people completely overlook that one because it's in an administrative title of the Code (and not in 18.2). That said, I've never seen or heard of it being enforced, at least not formally by arrest or summons, and it gets flagrantly violated all the time. DIP seems to be the only thing that gets people in trouble in this realm. Quoted:
Quoted:
The answer is no, they are not. But not because of 18.2-323.1 (Open Container), which just applies to the driver. The applicable code section is: 4.1-308 Drinking Alcoholic Beverages in Public Most people completely overlook that one because it's in an administrative title of the Code (and not in 18.2). That said, I've never seen or heard of it being enforced, at least not formally by arrest or summons, and it gets flagrantly violated all the time. DIP seems to be the only thing that gets people in trouble in this realm. A lot of cities have an "open container" code that is similar to that and they charge locally under rather than using the state code. |
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Tennessee, Mississippi, others I'm sure. Quoted:
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Do any states still allow open containers? It used to be that Indiana and Texas were the only ones, and I think they both outlawed it. Tennessee, Mississippi, others I'm sure. My daughter told me that when they were living in Wyoming, that there were liquor store drive-throughs, that sold mixed drinks in disposable plastic cups with caps and a straw.  As long as you don't drink it, you are legal.
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Quoted:
My daughter told me that when they were living in Wyoming, that there were liquor store drive-throughs, that sold mixed drinks in disposable plastic cups with caps and a straw. As long as you don't drink it, you are legal.Quoted:
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Do any states still allow open containers? It used to be that Indiana and Texas were the only ones, and I think they both outlawed it. Tennessee, Mississippi, others I'm sure. My daughter told me that when they were living in Wyoming, that there were liquor store drive-throughs, that sold mixed drinks in disposable plastic cups with caps and a straw. As long as you don't drink it, you are legal.They had those in Louisiana when I was there in '01, I dunno if it's still that way or not. |
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Quoted:
The whole "in public" thing has been addressed by the Court of Appeals here in Virginia, at least as it applies to DIP. I would assume a similar analysis would apply to the ABC code about consuming in public. I don't have the case(s) handy, but the gist of it is that if you're within view and/or earshot of public areas - even if you're actually in private property, like your front porch - then you are "in public," as the statutes are intended to protect the delicate flowers of the world from your debauchery. So on the vehicle question, if I understand it right, it would depend on where you were parked and whether you were in view and/or earshot of any public spaces (e.g., sidewalks, roads, etc.). Inside of an RV with the blinds closed is an interesting question. I don't want to guess on that, so I won't, but I will relate a funny story about that issue. I was at the Supreme Court of Virginia 2 or 3 years ago waiting to argue an appeal in a civil case, and the case being heard before mine involved the issue of DUI and the whole "keys in the ignition" being enough to constitute "operating" a motor vehicle. One of the justices wondered aloud whether he'd go to jail if he was at a UVA football tailgate, had a couple drinks, and then turned the ignition in his RV to the "accessory" position so he could listen to the radio. Everyone laughed, but then realized it was kind of a problem. SO, well worded! 
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