Under North Carolina laws, drivers can face misdemeanor charges for consuming an alcoholic beverage in a motor vehicle. These laws are often called “open container laws.” Open container laws are intended to prevent drivers from drinking while driving, putting others’ safety in jeopardy.
The penalties for open container charges are serious and can result in points on your driver’s license, an increased insurance premium, and fines. If you’re facing these charges, it’s crucial that you work with an experienced criminal defense attorney. Attorney Joel Hancock has extensive experience in various DUI/DWI cases in North Carolina. Contact Hancock Law Firm, PLLC, to schedule an initial consultation.
Understanding North Carolina’s Open Container Laws
North Carolina has two different statutes related to the consumption of an alcoholic beverage in a motor vehicle. If you have an open container in your vehicle when you are stopped for a DWI in North Carolina, you could face a misdemeanor charge or a traffic infraction. Whether the open container was located in the car, whether the driver had anything to drink, and who was in possession of the open container are all important factors.
North Carolina G.S. 20-138.7(a) – Misdemeanor Open Container
North Carolina G.S. 20-138.7(a) criminalizes driving with an open container in the passenger area while consuming alcohol or while alcohol remains in the driver’s body. The prosecutor must prove that you were engaged in all of the following:
- Driving
- A motor vehicle
- On a highway or the right-of-way of a highway
- While there is an alcoholic beverage in the passenger area other than the unopened manufacturer’s original container and
- While the driver is consuming alcohol or while alcohol remains in the driver’s body
The Penalties for a Misdemeanor Open Container Conviction
Drivers convicted under North Carolina G.S. 20-138.7(a) face criminal penalties and penalties through the North Carolina Division of Motor Vehicles (NCDMV). A conviction is a Class 3 Misdemeanor. A second or subsequent conviction is a more serious Class 2 Misdemeanor. For the NCDMV, a conviction is considered a moving violation that carries points on the offender’s driver’s license. While a first-time conviction won’t trigger a driver’s license revocation, a second conviction will result in a six-month revocation. A third or subsequent conviction can result in a one-year driver’s license revocation.
Drivers can be convicted of transporting an open container and DWI for the same incident. However, the penalty for transporting an open container can’t be added to the penalty for a DWI in a way that would exceed the maximum allowable penalty for a DWI.
North Carolina G.S. 20-138.7(a1) – Infraction Open Containers
Drivers found guilty of North Carolina G.S. 20-138.7(a1) must be in possession of an open alcoholic beverage in the passenger area of the motor vehicle. The prosecutor needs to prove the following elements to secure a conviction:
- The driver possessed an alcoholic beverage in a container other than the unopened manufacturer’s original container or consumed an alcoholic beverage
- In the passenger area of a motor vehicle
- While the motor vehicle is on a highway or the right-of-way of a highway
The only person who can be charged under this statute is the person who possessed or consumed the alcoholic beverage in the passenger area.
Penalties for Open Container Infractions in North Carolina
A violation of North Carolina G.S. 20-138.7(a1) is an infraction and not as serious as a misdemeanor charge. However, if you’re convicted, you’ll still face a fine of up to $100. The violation isn’t considered a moving violation, so you won’t have points assessed against your driver’s license.
However, the same driver’s license revocation guidelines that apply to misdemeanor open container violations apply to the infraction open container violations. You could face a six-month revocation of your driver’s license for a second conviction or a revocation of up to one year for a second or subsequent revocation.
Defenses Against Open Container Charges
If you’ve been charged with an infraction or misdemeanor under North Carolina’s open container laws, there are several legal defenses you could make. Prosecutors bear the burden of proof. They must prove every element of the offense beyond a reasonable doubt. Accordingly, the prosecutor must prove that an alcoholic beverage was present during the arrest.
Many police officers do not complete the paperwork to create evidence that an open container was in the vehicle. When a police officer doesn’t note in the paperwork that any actual alcohol was present within the container, your defense attorney can argue that the bottle or can was trash and doesn’t meet the statutory requirement of an open container of alcohol. The lack of recordkeeping can benefit defendants. In other cases, your attorney may be able to prove that the law enforcement officer who stopped you and arrested you violated your constitutional rights. In that case, your defense attorney can request that the evidence gathered from the illegal search be dismissed.
The prosecution must rely on blood alcohol or breathalyzer tests to convict a driver of transporting an open container with alcohol in his or her system. These tests have been unreliable, especially when the operator hasn’t received enough training or the breathalyzer machine hasn’t been properly maintained. Challenging the results of the blood or breathalyzer test can be an effective legal defense.
The Benefits of Working with an Experienced DWI Attorney
When you work with Hancock Law Firm, PLLC, attorney Joel Hancock will thoroughly investigate your case and develop the best legal defense strategy possible to have the charges against you dismissed or reduced. If your driver’s license has been revoked, attorney Joel Hancock can help you pursue a limited driving privilege to drive yourself to and from work and other errands between 6 a.m. and 8 p.m.
Discuss Your Case With a Skilled Criminal Defense Attorney
Fighting charges for the consumption of an alcoholic beverage in a motor vehicle can be difficult. If you’re facing criminal charges, you need an experienced DWI attorney on your side. Contact Hancock Law Firm, PLLC, to learn more about how he can build a compelling legal defense on your behalf.