Texas Penal Code 49.031 – Possession of Alcoholic Beverage in Motor Vehicle

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Texas Penal Code 49.031 – Possession of Alcoholic Beverage in Motor Vehicle

WHAT IS POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE IN TEXAS?

The Texas law against possession of alcoholic beverage in a motor vehicle prohibits open containers of alcohol in the passenger areas of vehicles, whether parked or in motion.

What is an open container in Texas? Texas Penal Code Section 49.031 defines an “open container” as a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed. Learn more.

What are examples of open containers in Texas? Under Texas law, open containers include anything holding an alcoholic beverage. Flasks, soda cups with liquor mixed in, bottles or cans of alcohol, and any other cup, glass, bottle, can, or other container.

WHAT IS THE POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE LAW IN TEXAS?

Tex. Penal Code § 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE

(b) 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 or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.

(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:

(1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or

(2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.

(d) An offense under this section is a Class C misdemeanor.

(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.

WHAT IS THE PENALTY CLASS FOR POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE IN TEXAS?

Possession of an alcoholic beverage in a motor vehicle is a Class C misdemeanor, punishable by a maximum $500 fine.

WHAT IS THE PUNISHMENT RANGE FOR POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE IN TEXAS?

The punishment range for possession of an alcoholic beverage in a motor vehicle, a Class C misdemeanor, is a fine of up to $500, and no jail time.

WHAT ARE THE PENALTIES FOR POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE IN TEXAS?

A person charged with possession of an open container in a motor vehicle may be eligible for deferred adjudication for a period not to exceed 180 days. If convicted of open container, a Class C misdemeanor, there is no probation, and a person may only be punished by a fine.

WHAT ARE THE DEFENSES TO POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE IN TEXAS?

The Texas open container statute does not authorize defenses for possession of an open container. The law creates exceptions for open containers in motor vehicles designed to be used as living quarters, such as motorhomes and RVs, as well as vehicles used for professionally transporting people, such as limousines, buses, and taxis.

Can a person be arrested for open container in Texas? No. A police officer may only issue a ticket, and may not arrest the person for an open container.

WHAT IS THE STATUTE OF LIMITATIONS FOR POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE IN TEXAS?

The limitations period for possessing an alcoholic beverage in a motor vehicle, a Class C misdemeanor, is two years.

POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE IN TEXAS

Possession of an alcoholic beverage in a motor vehicle in Texas is a Class C misdemeanor. A person may not be arrested for an open container, but may be given a ticket. Learn more.

TEXAS POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE COURT CASES

The case law regarding possession of alcoholic beverage in motor vehicle in Texas shows how police may use suspicion of possessing an open container to search the rest of a person’s car.

In Harding v. State, the defendant was stopped for speeding, and the police officer smelled alcohol coming from the car. Based on suspicion of possession of an open container, the officer searched the vehicle, and found drugs in the car. The defendant argued the officer lacked probable cause to search the vehicle, but the trial court denied the motion to suppress. The appellate court affirmed, holding the officer had probable cause to believe the defendant was in possession of an open container.

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CHARGES DISMISSED

DRIVING WHILE INTOXICATED .15

Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.

CHARGES DISMISSED

DRIVING UNDER THE INFLUENCE

Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.

CHARGES DISMISSED

DRIVING WHILE INTOXICATED .15+

Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest.

CHARGES DISMISSED

DWI 2ND

Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.

CHARGES DISMISSED

DRIVING UNDER THE INFLUENCE

Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.

CHARGES DISMISSED

DRIVING UNDER THE INFLUENCE

Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.

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