Texas has some of the strictest drunk driving laws in the country. The law says that you cannot drink while intoxicated, and it says that you cannot drive with an open alcohol container in your motor vehicle. What’s more, your passengers cannot drink while you drive. A Fort Worth DWI attorney will tell that if you’re stopped based on a belief that you’re driving while impaired from alcohol, having an open container in the vehicle will change the character of your offense and jail time will automatically be added to your penalties. If pulled over, the police officer is going to smell the open container, and he/she will assume that you’ve been drinking and driving.
A first DWI offense may start with a false sense of security. While you may think that the traffic stop is routine; what you may not know is that police officers are always looking for the slightest hint of trouble. The officer will tell you that he can smell alcohol on you, but the situation worsens if he sees or finds an open container of alcohol in your vehicle. The officer will request that you perform field sobriety tests, which, by the way, are designed for you to fail. He tells you that you have failed the test and places you under arrest. At this moment, your head may be spinning with countless questions: “What does it mean to be charged with a first DWI offense in Texas?” “What are the penalties?” “Does having an open container prove my guilt?” While the answers depend on the specific facts of your case, having a general understanding of the law can be helpful in defending your freedom.
Overview of Texas DWI Laws
Texas Penal Code Title 10 makes it illegal to drive a vehicle while intoxicated. Texas Penal Code 49.04 makes it illegal for a person to be intoxicated while operating a vehicle in a public place. Under Penal Code 49.01 (2), intoxication means not having normal use of physical or mental faculties as a result of the use of alcohol, a drug, controlled substance, dangerous drug, or a combination of two or more of these substances. A person can also be considered intoxicated if they have a blood-alcohol concentration (BAC) of .08 or more. Basically, not having normal physical or mental faculties could mean behavior such as swerving while driving, slurred speech, or simply not acting normal.
Since DWI is defined as operating a vehicle while intoxicated, a driver can be arrested even if he/she was not actually driving. So, while driving is sufficient to warrant a conviction, it isn’t primarily required. Texas courts have found the term “operate” to be very broad and include any action that affects the functioning and enable the use of a vehicle,
Texas holds commercial drivers to a higher standard of care and considers them intoxicated if they have a BAC of .04 or more. For the purposes of DWI, individuals under age 21 are considered to be minors and any detectable amount of intoxication in the system while operating a vehicle would constitute a DWI offense.
Criminal Penalties for a First DWI in Texas
A 1st DWI offense in Texas is a Class B misdemeanor. If you’re an adult convicted of this offense in Texas, the possible penalties include:
- A fine of up to $2,000
- A minimum of 72 hours to 180 days in jail
- Driver’s license suspension for 90 days to 1 year
- An annual surcharge fee of $1,000 for 3 consecutive years if you have to retain your driver’s license
- At least 24 hours of community service, but no more than 100 hours
However, a first DWI offense becomes a Class A misdemeanor when an adult has a BAC of 0.15 or more. The possible penalties include:
- A fine of up to $4,000
- Up to 1 year in county jail
- Suspension of the driver’s license for up to 1 year
- Installation of ignition interlock device (IID) for 1 year after the period of license suspension
- An annual surcharge fee of $2,000 for 3 years
In addition, all first time DWI offenders should expect to take an approved 12-hour Alcohol Education Course within 180 days of when probation was granted. There are also several long-term implications of a DWI arrest or conviction. This may include having a permanent criminal record, losing your employment position, professional license suspension, being dropped by your insurance provider or paying higher auto insurance rate, and possibly penalties on your licenses or certificates.
Understanding Texas Open Container Offense
In Texas, it is illegal to possess an open alcoholic beverage container in a motor vehicle. Under Penal Code Title 10, an open container means a can, bottle or another vessel that contains any amount of alcoholic beverage and is open, has a broken seal, has been opened, or its contents are partially removed. However, just having an open container in the vehicle is not enough to commit the offense. As provided by § 49.031(b), an individual is guilty of this offense if he/she knowingly possesses an open alcohol container in a passenger area of the vehicle located on a public highway. It does not matter whether the vehicle is being stopped, parked, or operated. Also, in a single stop, each individual container in the vehicle represents a separate violation of the law, and each separate container will result in a separate citation.
The elements of the open alcohol container usually prove important to a case’s defense. You attorney will explain how your case could be affected by these elements:
Open container: As already mentioned, an open container is a can, bottle, or another vessel that (1) is open, has a broken seal, or its contents are partially removed and (2) contains any amount of alcoholic beverage.
Passenger area of the vehicle: This is an area of a vehicle designed for the seating of the driver and passengers. It excludes locked storage compartments or locked glove compartment, the vehicle’s trunk, or the space behind the last upside of a vehicle that does not have a trunk.
Public highway: This refers to the area between and immediately adjacent to public road, interstate, highway, street, or another publicly-maintained way that is open for motor vehicle travel.
A driver can be charged under open container law even if the alcohol was in the possession of a passenger. However, this does not apply for commuter vehicles such as limousines, taxes, buses, or recreational vehicles, provided the open container is in the living portion of the recreational vehicle. If you’re transporting an open container from one point to another, it must either be in your trunk or compartment glove. If your vehicle is like a minivan or hatchback that does not have a trunk, the open container must be put behind the last seat. Another alternative would be a locked storage container.
If you did not know that the passenger was drinking alcohol, you can use that as a defense against an open container citation. Whether that defense will be successful is another issue. Under Texas law, it’s the responsibility of a driver to ensure that passengers follow the laws. If a friend spiked his coffee with alcohol and the police figure it out, the citation will be issued to you, and that means you’ll be the one who will appear in court. If convicted, the misdemeanor will appear on your record, not your friend’s. However, if you can get your friend to say that he was drinking illegally in your car, he may be charged with the crime instead of you.
Open Container Offenses are Different from DWIs
An open container offense greatly varies from a DWI offense. For example, you’re driving with a beer in one hand, make a left-hand turn, and you bump into a police cruiser. You can be charged with an open container violation, DWI, and will likely get several tickets for driving into a police cruiser. If charged with a 1st DWI offense and an open container violation at the same time, the open container will be an aggravating factor that can increase your penalties for the DWI. This means that you’ll be charged with a DWI but your minimum jail time will be doubled. If you’re exonerated of the DWI, you may still face the charge of having an open container.
Unlike a DWI, the officer who pulls you over will not arrest you and take you to court for an open container violation. Instead, you will be given a written citation (ticket) and notice to appear in court. The police officer will ask you to sign that you agree to appear in court and will also give you a copy of the ticket, which includes information about your court date, your offense, and when and where you need to appear. If you fail to show up, the court could issue a warrant for your arrest.
Law enforcement officers, prosecutors, and courts typically consider an open container in a vehicle to be an aggravating factor. The presence of alcohol in the vehicle can be used as circumstantial evidence to prove that the defendant used alcohol at the time of driving. It can also be used to refute a driver’s claim that he/she has not consumed alcohol. A driver can be arrested for a DWI offense and be cited for the open container violation. Law enforcement officers often use open container charges as a pretense to stopping an individual and performing roadside breathalyzer, sobriety, and blood tests. Even in a situation where the container in question does not qualify under Texas law, the charge makes it clear why the tests were performed.
Exceptions to the Open Container Offense
It’s not unlawful for an individual to possess an open alcohol container in the passenger area of a vehicle in 2 specific circumstances:
- If the open container was found in the living quarters (instead of the passenger area) of a motorcoach, self-contained camper, recreational vehicle, or motorhome, then it’s not a criminal offense.
- If the open container was found in a vehicle that was designed, used, or maintained for the purpose of transporting people in return for compensation, then it’s not a criminal offense to have an open container in the vehicle provided you’re the person being transported. Examples include taxis, limousines, and buses. This exception, however, does not apply to drivers. This means that a driver can face the open container enhancement if arrested for DWI, and there was an open container in the vehicle.
Penalties for First DWI with Open Container Enhancement
Each count of open alcohol container in a vehicle in Texas is a Class C misdemeanor. It is punishable by a fine of up to $500. Under certain circumstances, the conviction may also be expunged. The offense, however, becomes an enhancer if it’s accompanied by a DWI charge.
The penalties for a first-time DWI conviction with open alcohol container enhancement are mostly the same as with a “typical” first-time DWI conviction with the aggravating factors. Both are Class B misdemeanors but the minimum jail time for the first DWI offense with an open container is 6 days instead of 72 hours. This means that an open container violation increased the minimum DWI confinement term.
If a driver is found to have an open alcohol container in his/her possession at the time of the DWI arrest, the prosecution may present the open container as evidence to strengthen the claim that the defendant was drinking before or as he/she was driving. Also, the court may choose the higher end of the punishment due to aggravating conditions.
Collateral Consequences of a Conviction
The problem with penalties imposed by the state is that they attract other collateral consequences. When you think that you have nothing to worry about once the criminal penalties are fulfilled, you may find that the “minor” misdemeanor stands in your way, especially if you care about your clean record and reputation. If you’re concerned about your career and academic aspirations, your auto insurance coverage, or social status, a DWI with open container record can become a roadblock to managing those concerns of fulfilling those aspirations. A criminal record can affect you in the following ways:
Employment Applications: Many employers ask and conduct background checks to see if a job applicant has been convicted of a crime. If you have a criminal record, the employer may consider you a liability risk to the company and may call into question your credibility or reliability as an employee.
College Acceptance/Financial Aid: Individuals applying for graduate programs may be required to disclose their criminal history. A DWI record can greatly impact the chances of being accepted into the program. In addition, a person seeking financial aid for graduate school could be disqualified from some of the programs.
Auto Insurance: A DWI with open container conviction could result in an increase in your auto insurance premiums because your insurance provider could consider you a high risk.
Professional License: If you have or will require a license for your professional career, a first DWI with open container conviction could put your career in jeopardy. Depending on the facts of your case, your licensing board may choose to suspend or revoke your license. The board may also refuse to grant or renew the license. The same applies to security clearances.
Fortunately, there’s a way to keep your arrest record from being discovered by the public. You may request an order for non-disclosure under HB 3016. If you qualify and the non-disclosure is granted, the state will seal your DWI conviction and civilians running a background check will not be able to see the record. Your record will still be maintained in the government databases but can make your professional and personal life a lot easier.
You may qualify for an order of non-disclosure if this was your first and only DWI conviction, your BAC was below .15 percent, you have never been convicted of another crime, you have completed all the terms of your sentence and/or probation, and your DWI did not result in an accident.
Open Alcohol Container Defenses
There are many legal defenses that a skilled Fort Worth DWI Attorney can present on your behalf. Some are more general, and some are specific to the charge, but much of it will come down to the facts or details of the case. The most common defenses include:
- The open container was in an acceptable part of the vehicle
It is a legal defense to state that the open alcohol container was in the trunk of the car, in a locked container, in the back seat, or an area of the vehicle not occupied by passengers. If it’s in such areas, it doesn’t matter if it’s open or not. That’s an exception under Texas law, which means that you’re not guilty of violating open container laws and should, therefore, be acquitted of this offense.
- The open container was in a taxi, bus, limousine, or camper
Drivers of or passengers in a taxi, bus, camper, or limousine are exempt from prosecution for possessing an open container. Drivers of such vehicles are not permitted to drink alcohol, but passengers can. There can be challenges in defending your case if you are arrested for DWI with an open container in the carriage part of the vehicle. However, if a passenger brings alcohol into the vehicle and you genuinely aren’t aware of that, you may have a valid defense to an open container charge.
- The officer lacked probable cause to investigate you
Even if you were under the influence and drove with or possessed an open alcoholic beverage, your charge should be dismissed if the arresting officer did so without probable cause. For the evidence to be legally admissible in Texas, the traffic stop itself must have reasonable cause to conduct a search of the vehicle. Under Texas law, probable cause means a reasonable belief that you were committing a crime. Therefore, police can only stop you if they’re able to point to specific articulable facts to prove their belief that you were engaged in a crime.
If, for example, you ran a stop sign or were speeding, the police would be right to pull you over and if they notice an open container in the cause of that stop, the charge would be valid. However, if the officer did not have any suspicions that you were driving while intoxicated and the container was not observable from outside the vehicle, any search of the interior of your vehicle may have been illegal if the officer pulled you over for no legal reason.
- The open container was discovered during an illegal search
Similarly, if you are technically guilty of driving while intoxicated and having an open alcohol container in the vehicle, but the officer only discovers this because they violated the search and seizure laws that may be enough to get the charges dismissed. This means that it may be possible to get the evidence excluded if the officers discover the open container without probable cause, without consent to search the car, and without arresting you for another violation.
Find a DWI with Open Container Defense Attorney Near Me
If you were recently charged with 1st DWI offense and an open container law violation in Fort Worth, you should think twice before you simply plead guilty. DWIs are defensible even if there’s alleged evidence to prove your guilt. Also, you’re innocent unless proven guilty. A DWI conviction can set you back, and that’s why you need to fight a conviction to maintain life as you know it. It’s in your best interest to contact an experienced DWI Attorney to prevent a criminal record from materializing.
I have spent my career traveling throughout Fort Worth to defend those who have been charged with DWIs. I have wealth of experience handling these cases successfully and have had instances where clients won cases when they had open containers in their vehicle. I will fight to have your DWI/Open Container charges dismissed or reduced. Call the Fort Worth DWI Defense Lawyer at 817-689-7002 for a free, confidential consultation.