A Virginia driver can be charged with an open container offense even if only their passenger has the bottle or cup of beer, wine or liquor. This matters to my Virginia personal injury and wrongful death law firm colleagues and I because it means that a driver who causes a crash while their passenger was drinking can potentially be treated as being under the influence.
In Virginia, North Carolina and elsewhere, drunk drivers are considered reckless and subject to paying punitive damages to the people they injure or kill. Going through and winning a jury trial is required to collect punitive damages, but it can be a viable option for truly making an at-fault driver pay for the harm they inflicted.
- Binge Drinking and Drunk Driving Crashes in Virginia
- Pay Attention to the Dangers of Distracted Driving
- What Damages Can a Drunk Driving Victim Pursue?
Virginia’s Open Container Law Creates a Presumption of Drinking While Driving
Section 16.2-323.1 of the Virginia Code makes it illegal for a driver to operate a moving vehicle while there is an open container of alcohol in the passenger area. The statute defines an open container of alcohol as “any vessel containing an alcoholic beverage, except the originally sealed manufacturer’s container.”
So, yes, drivers can legally drive home—sober—from a store as long they do not pop the top on any bottles, cans or kegs they purchased. Additionally, open containers can be kept in the trunk or the wayback. By Virginia statute, the passenger area of a vehicle is limited to “any area within the reach of the driver, including an unlocked glove compartment, and the area designed to seat passengers.”
When an open container of alcohol is found in the passenger area of a vehicle, state law creates
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.
Handing a bottle or cup to a passenger or tossing it immediately behind their seat will not get a driver off the hook. They retain the right to contest a criminal charge, but the filing of a charge itself starts a collection of evidence for drunk driving.
The evidence gathered by police can then be accessed and used by a personal injury or wrongful death attorney. This is true even if a drunk driving charge is later dropped, reduced or dismissed. In fact, the fact that a driver was convicted of an offense cannot be cited in a civil case involving personal injury or wrongful death.
Intoxication Is Not the Only Risk Created by an Open Container
As much as my law firm colleagues and I encourage people to serve as designated drivers, no one can dispute the reality that an intoxicated passenger can become a major distraction. Having other people in the car at any time can increase crash risks, and that danger rises when a passenger is in their cups (to use an apt, if outdated, phrase).
The safest thing a driver can do is keep open containers of anything out of their hands and beyond their reach while their vehicle is in motion. A mug of coffee or a can of cola can be as distracting as a solo cup margarita. Raising the container to one’s face obscures vison and takes at least one hand off the wheel. Then there is the potential chaos that would unleashed by a spill.
In short, leave the alcohol at home. Stay focused on operating safely.
An experienced personal injury attorney with dual licensure in Virginia and North Carolina, Eric Washburn received a B.B.A. in Finance from James Madison University—initially worked in the information technology field before obtaining his law degree from Thomas M. Cooley Law School in Lansing, Michigan. Once an Assistant Commonwealth’s Attorney in Danville, Va., Eric has been recognized by Super Lawyers Magazine as a “Rising Star” Super Lawyer in Virginia since 2014.
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