Open container laws are common across the US, including North Carolina. For those that keep their car’s interior in less-than-superb condition, you may have articles of trash that can pose a severe risk to your driving record—one of the main offenders being a discarded alcoholic beverage container. While you may have collected the trash in a bag, it may not be enough to save you from receiving a citation if a law enforcement officer pulls you over.
What Offenses can You be Charged With?
Under North Carolina law, operating a motor vehicle with an open container can be classified under two separate traffic infringements.
According to N.C.G.S. § 20-138.7(a), if you’re a first time offender, you can be charged with a Class 3 misdemeanor (Class 2 if you’re a repeat offender) by driving your car on a highway with an open container in the passenger section of the vehicle. An open container is defined as an alcoholic beverage that has been opened or is no longer in the manufacturer’s original packaging. This charge is levied if the driver has alcohol in their system or is actively consuming while driving.
You can be charged with a non-moving infraction under N.C.G.S. § 20-138.7(a1) if you are simply driving a motor vehicle while possessing an alcoholic beverage in the passenger area that is no longer in its original manufacturer’s container.
Defense Against Open Container Charges
The statutes described above have multiple aspects that an attorney can leverage if you’re charged with a crime or an infraction. As with the majority of charges brought up by the prosecution, they bear the burden of proof. This proof means that an alcoholic beverage needs to present during the arrest. However, many officers neglect the proper paperwork required to create substantial evidence for an open container conviction. Without denoting any actual alcohol presence within the container, a lawyer can form an argument that the can or bottle found is simply trash. This lack of recordkeeping or evidence gathering on the law enforcement officer’s part can be critical to creating a defense.
If Convicted, What Penalties Might You Face?
As stated above, the penalties you may face will be dependent on which charge you received.
For an open container infraction, in which it’s been established that a passenger or the driver is in possession of an open container, but the driver doesn’t have alcohol in their system, they have committed a non-criminal violation. This offense doesn’t result in the driver’s arrest, but they will face a fine of up to $100 plus any associated costs.
In the case of an open container misdemeanor, the State has to prove the existence of evidence of an open container in the passenger area. For the charge to be classified as a misdemeanor, the above criteria must be met in conjunction with proving that the driver was actively consuming alcohol or had alcohol in their system during the stop.
If the driver is a first-time offender, then they may be sentenced to a maximum of 20 days in jail. If they are a second-time offender, they may be subjected to up to 60 days in jail. Standard practice has shown that most people charged with open container misdemeanors will receive a fine along with probation.
It’s important to note that North Carolina maintains “per se” laws on the books. This law means that by possessing a North Carolina driver’s license, you’ve given implied consent to submit to a breathalyzer or a blood test in terms of determining the level of alcohol in your system. If you are pulled over and refuse to submit to testing, you face automatic administrative revocation of your license. If you do perform the test and your blood alcohol level (BAC) exceeds 0.08%, you will meet more than just an open container misdemeanor. You will have to fight against a DUI charge.
North Carolina considers an open container conviction a moving violation and will subsequently assess points against the driver’s license. If this conviction was the offender’s first, they might face a revocation, although it’s not a given. However, if this is a second offense, then a compulsory revocation of six months will be levied against the driver’s license. The punishment is further compounded if the driver is receiving the third (or more) open container conviction and will lose their license for a minimum of one year.
Fighting these charges can be difficult, although, with an experienced team of lawyers who specialize in DUI/DWI cases, you can build a compelling defense. Contact us today to schedule your free consultation and let us handle your open container case.
