Topic:
DRUNK DRIVING; FEDERAL ASSISTANCE PROGRAMS; GRANTS; HIGHWAY CONSTRUCTION; LEGISLATION; LIQUOR; MOTOR VEHICLES; TRAFFIC REGULATIONS; TRANSPORTATION SAFETY;
Location:
DRUNK DRIVING; LIQUOR; TRAFFIC REGULATIONS;

OLR Research Report


February 7, 2008

 

2008-R-0128

OPEN CONTAINER LAWS

By: Janet L. Kaminski Leduc, Associate Legislative Attorney

You asked for information on the open container laws in other U.S. jurisdictions. Specifically, you asked if any jurisdictions whose open container laws comply with federal requirements include an exception for passengers paying a driver to transport the passengers in a privately owned motor vehicle while the passengers possess open containers of alcoholic beverages.

SUMMARY

In 1998, as part of the Transportation Equity Act for the 21st Century (TEA-21) Restoration Act, a Federal program was established to encourage states to adopt laws that prohibit the possession and consumption of alcoholic beverages in the passenger areas of motor vehicles (23 USC 154). As of February 2007, 43 states and the District of Columbia and Puerto Rico have open container laws. Of those, the laws in 39 states and the District of Columbia satisfy the federal requirements, such that they are not subject to a penalty transfer of federal highway construction funds to the state's safety grant program. Six states, including Connecticut, do not have an open container law, but prohibit the consumption of alcohol in certain circumstances. One state, Mississippi, has neither an open container law nor an alcohol consumption prohibition.

To comply with the federal program, an open container law must meet certain requirements. Among other things, the law must apply to all vehicle occupants. But, the law may provide an exception for open containers of alcoholic beverages possessed by passengers “in the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation” (e.g., buses, taxicabs, and limousines). Of the 40 federally-compliant jurisdictions, four do not include such an exemption for paying passengers. The other 36 include the exemption as phrased in the federal statute, or some variation of it. Thus, for example, passengers in a registered, permitted limousine operated by a properly licensed driver and in accordance with applicable laws may possess open containers and consume alcoholic beverages in the passenger area of the limousine.

No jurisdiction exempts open containers possessed by passengers in a privately owned vehicle (i.e., one that is not designed, maintained, and used primarily for transporting paying passengers) driven by a person passengers hired for the specific purpose of driving them so they can possess open containers and consume alcoholic beverages in the vehicle.

However, two states (North Dakota and Washington) exempt open containers in the passenger area of a privately owned motor vehicle operated by a person in the course of his or her usual employment and transporting passengers at the employer's direction.

FEDERAL REQUIREMENTS FOR OPEN CONTAINER LAWS

Federal law authorizes the transfer of a portion of a state's federal highway construction funds to the state's safety grant program if the state does not comply with the federal program requirements for enacting open container laws. Transferred funds may be used only for alcohol-impaired driving countermeasures, enforcement of drunk driving laws, or the state's hazard elimination program.

To comply with the federal program, a state's open container law must:

1. prohibit both possession of any open alcoholic beverage container and consumption of any alcoholic beverage;

2. cover the passenger area of any motor vehicle, including unlocked glove compartments and any other areas of the vehicle that are readily accessible to the driver or passengers while in their seats;

3. apply to all open alcoholic beverage containers and all alcoholic beverages, including beer, wine, and spirits that contain 0.5% or more of alcohol by volume (including 3.2% beer);

4. apply to all vehicle occupants except for passengers of vehicles designed, maintained, or used primarily for the transportation of people for compensation (such as buses, taxi cabs, and limousines), or the living quarters of motor homes;

5. apply to all vehicles on a public highway or the right-of-way (i.e. on the shoulder) of a public highway; and

6. require primary enforcement of the law, rather than requiring probable cause that another violation had been committed before allowing enforcement of the open container law.

To avoid the transfer of funds, a state must certify that its laws comply with each of the criteria specified above and that the state is enforcing the law.

STATE OPEN CONTAINER LAWS

Table 1 provides a summary of the maximum penalty assessed for violating open container laws in the jurisdictions that comply with the federal requirements. The amounts shown do not include any additional penalties, fees, assessments, or surcharges that may accrue under the jurisdictions' laws. The maximum base penalties tend to be between $100 and $500, but vary in some states based on 1st, 2nd, or subsequent offense.

Table 2 identifies the 40 federally-compliant jurisdictions and each one's (1) penalty for a violation and (2) paying passenger exception (if any).

Table 3 lists the five jurisdictions that have open container laws that do not comply with the federal requirements, each one's penalty for a violation, and the apparent deficiency making the law non-compliant.

Table 4 includes the six jurisdictions, including Connecticut, that prohibit consumption of alcoholic beverages in certain circumstances (e.g., in a public place, while operating a motor vehicle) and each one's penalty for a violation.

Table 1: Maximum Base Penalty Dollar Amount for Open Container Violation in Federally-Compliant Jurisdictions

Maximum Penalty

Jurisdictions

$50 or less

Alabama

Colorado

Florida**

Maryland

New Mexico1

North Dakota

VermontO

$51 - $100

California

Florida*

Idaho**

Iowa

Kentucky

MichiganO

Montana

Nebraska1

North Carolina**

OhioO

OklahomaC

South Carolina

Wisconsin

$101 - $200

Georgia

Kansas

Nebraska2

New Hampshire

New Jersey1

New York1

North Carolina*1

Rhode Island1

$201 - $300

Hawaii**

Nebraska3+

New Jersey2+

New Mexico2+

New York2

OhioC

Oregon

Pennsylvania

Washington

$401 - $500

District of Columbia

Indiana

Maine

Massachusetts

MichiganC

New York3+

OklahomaO

Rhode Island2+

South Dakota

Texas

Vermont*C

$701 - $800

Arizona

Utah

$901 - $1,000

Idaho*

Illinois1,2

Minnesota

Nevada

North Carolina*2+

More than $1,000

Hawaii*

Illinois3+

NOTE: Amounts do not include any additional penalties, fees, assessments, or surcharges that may be added onto the base penalty.

KEY:

1

1st offense

*

applies to driver

2

2nd offense

**

applies to passenger

2+

2nd and subsequent offense

O

if open container violation

3+

3rd and subsequent offense

C

if consumption violation

Table 2: Open Container Laws Complying with Federal Requirements

STATE

(citation)

PENALTY FOR VIOLATING OPEN CONTAINER LAW

OPEN CONTAINER EXCEPTION FOR PAYING PASSENGERS

Alabama

( 32-5A-330)

Up to $25

(class C misdemeanor)

Court costs cannot be charged. Points do not accrue against a driver's license.

A passenger of a motor vehicle designed, maintained, or primarily used for transporting people for compensation and the driver holds a valid commercial driver's license (CDL).

Arizona

( 4-251)

Up to $750 and four months imprisonment (class 2 misdemeanor)

A passenger in any bus, limousine, or taxi.

California

(Vehicle Code 23220-23229.1)

$70 fine

Passengers in any bus, taxicab, or limousine for hire licensed to transport passengers.

Colorado

( 42-4-1305)

$50 fine

(class A traffic infraction)

A passenger of a motor vehicle designed, maintained, or used primarily for transporting people for compensation, other than a front seat passenger.

District of Columbia

( 25-1001)

Up to $500, up to 90 days imprisonment, or both (misdemeanor)

No exception.

Florida

( 316.1936)

Driver: $60

(moving traffic violation)

Passenger: $30 (nonmoving traffic violation)

A passenger of a (1) vehicle in which the driver is operating the vehicle pursuant to a contract to provide transportation for passengers or (2) bus. The vehicle or bus driver must hold a valid CDL with a passenger endorsement issued in accordance with state law.

Georgia

( 40-6-253)

Up to $200

A passenger in the passenger area of a motor vehicle designed, maintained, or used primarily for transporting people for compensation.

Hawaii

( 291-3.1—

291-3.4)

Driver: up to $2,000, up to 30 days imprisonment, or both.

Passenger: up to $250, up to 30 days imprisonment, or both (petty misdemeanor)

A motor vehicle for hire which has been issued a certificate of public convenience or necessity, 1-7 passenger classification by the public utilities commission, so long as the motor vehicle has a barrier between the driver and the passengers sufficient to prevent intoxicating liquor from being passed between them and only the passengers behind the barrier consume the intoxicating liquor.

Table 2: -Continued-

STATE

(citation)

PENALTY FOR VIOLATING OPEN CONTAINER LAW

OPEN CONTAINER EXCEPTION FOR PAYING PASSENGERS

Idaho

( 23-505)

Driver: up to $1,000, up to six months imprisonment, or both (misdemeanor).

Passenger: Up to $100 (infraction)

A passenger in the passenger area of a motor vehicle designed, maintained, or used primarily for transporting people for compensation.

Illinois

(625 5/11-502)

1st or 2nd offense:

Up to $1,000

(petty offense)

3rd or subsequent offense within one year:

Up to $1,500, up to 30 days imprisonment, or both

(class C misdemeanor)

And, for a 2nd or subsequent offense within one year:

License suspension

Passengers in a limousine or chartered bus when such vehicle is used for a purpose it is ordinarily used (but not a chartered being used for school purposes). A limousine has a partition or dividing window enclosing the passenger area, is used in for-hire transportation of passengers, and is operated by a person with a valid Illinois driver's license with an appropriate classification.

Indiana

( 9-30-15-3)

Up to $500

(class C infraction, and it is not considered a moving traffic violation)

A passenger in the passenger compartment of a motor vehicle designed, maintained, or used primarily for transporting people for compensation.

Iowa

( 321.284, 321.284A, and 123.46)

$100

(simple misdemeanor)

For a passenger convicted under the open container law, DMV cannot include the violation on the person's driving record and cannot consider it in any proceeding related to the person's driving license.

A passenger being transported in a motor vehicle designed, maintained, or used primarily for transporting people for compensation.

Table 2: -Continued-

STATE

(citation)

PENALTY FOR VIOLATING OPEN CONTAINER LAW

OPEN CONTAINER EXCEPTION FOR PAYING PASSENGERS

Kansas

( 8-1599 and 41-719)

Open container:

Up to $200, up to six months imprisonment, or both (misdemeanor).

And, for 2nd or subsequent offense, one year license suspension in addition to any other penalty the judge orders, or, in lieu of suspension, any other court imposed conditions on driving privilege for up to one year.

Consumption:

At least $50 and up to $200, up to six months imprisonment, or both (misdemeanor)

A passenger in a bus.

"Bus" means every motor vehicle (1) designed for carrying more than 10 passengers and used for transporting people and (2) designed and used for the transporting people for compensation, other than a taxicab.

Kentucky

( 189.530 and 222.202)

Open container:

A fine of at least $35 but no more than $100, imprisonment of at least 30 days but no more than 12 months, or both

Consumption:

1st and 2nd offense: $25

3rd and subsequent offense within 12 months: a fine of at least $25 but no more than $100, imprisonment of at least five but no more than 90 days, or both.

A passenger in the passenger area of a motor vehicle maintained or used primarily for transporting people for compensation, such as buses, taxis, or limousines.

Maine

(29-A 2112-A)

At least $25 but no more than $500

(traffic infraction)

Note: The penalty is against the driver, whether it was the driver or a passenger that had the open container.

A passenger transported for a fee in a vehicle designed for the for-hire transporting of people, other than a taxicab.

Table 2: -Continued-

STATE

(citation)

PENALTY FOR VIOLATING OPEN CONTAINER LAW

OPEN CONTAINER EXCEPTION FOR PAYING PASSENGERS

Maryland

(Crim. Law 10-123 to 10-127)

Up to $25 plus court costs of $5

(civil offense and not a moving or traffic violation)

A passenger of a motor vehicle designed, maintained, or used primarily for transporting people for compensation, including a bus, taxicab, or limousine.

Massachusetts

( 90-24I)

At least $100 and no more than $500

A passenger of a motor vehicle designed, maintained, or used primarily for transporting people for compensation.

Michigan

( 257.624a and 436.1915)

Open container:

Up to $100, up to 90 days imprisonment, or both; and two license points (misdemeanor)

Consumption (“on public highways”):

Up to $500, up to six months imprisonment, or both (misdemeanor)

A passenger in a chartered vehicle that the state transportation department has authorized to operate.

Minnesota

( 169A.35)

Up to $1,000, up to 90 days imprisonment, or both (misdemeanor)

Passengers in a (1) bus operated by a motor carrier of passengers or (2) vehicle providing limousine service, which must have received a permit from the commissioner and meet specified requirements.

Montana

( 61-8-460 and 61-8-461)

Up to $100 and a violation cannot be charged against a person's driving record

A passenger of a motor vehicle, including a bus, taxi, or limousine, used for transporting people for compensation and that includes the provision of a hired driver.

Nebraska

( 60-6,211.08)

1st offense: up to $100

2nd offense within one year: up to $200

3rd and subsequent offense within one year: up to $300

(traffic infraction)

No exception.

Nevada

( 484.448)

Up to $1,000, up to 6 months imprisonment, or both; or 120 hours community service

A motor vehicle designed, maintained, or used primarily for transporting people for compensation.

New Hampshire

( 265-A:44)

$150 fine

And, for driver, 60 day license suspension for 1st offense and up to one year suspension for 2nd or subsequent offense

Passengers in a chartered bus, taxi, or limousine for hire.

Table 2: -Continued-

STATE

(citation)

PENALTY FOR VIOLATING OPEN CONTAINER LAW

OPEN CONTAINER EXCEPTION FOR PAYING PASSENGERS

New Jersey

( 39:4-51a and 39:4-51b)

For 1st offense: $200 fine and court must inform him of penalty for subsequent offenses.

For 2nd or subsequent offense: $250 or 10 days community service.

A passenger of a charted or special bus or a limousine service.

New Mexico

( 66-8-138)

For 1st offense: $25

For 2nd or subsequent offense:

Up to $300, up to 90 days imprisonment, or both. And, license revocation of three months for 2nd offense and one year for 3rd or subsequent offense.

(misdemeanor)

Any passenger in a bus, taxicab, or limousine for hire licensed to transport passengers pursuant to law.

New York

(Vehicle and Traffic Law 1227)

Up to $150, up to 15 days imprisonment, or both for 1st offense. (traffic infraction)

Up to $300, up to 45 days, or both for 2nd offense within 18 months.

Up to $450, up to 90 days, or both for 3rd or subsequent offense within 18 months.

Passengers in a passenger vehicle operated pursuant to a state or U.S. DOT certificate or permit.

A “passenger vehicle” is a vehicle designed to carry 10 or more passengers and used to carry passengers for profit or hire.

North Carolina

( 20-138.7)

Driver (moving violation)

1st offense: Up to $200, up to 20 days imprisonment depending on prior convictions, or both

(class 3 misdemeanor)

2nd or subsequent offense: Up to $1,000, up to 60 days imprisonment depending on prior convictions, or both. (class 2 misdemeanor)

Passenger

Up to $100 (infraction)

A passenger in the passenger area of a motor vehicle designed, maintained, or used primarily for transporting people for compensation.

Table 2: -Continued-

STATE

(citation)

PENALTY FOR VIOLATING OPEN CONTAINER LAW

OPEN CONTAINER EXCEPTION FOR PAYING PASSENGERS

North Dakota

( 39-08-18)

$50

A violation may be recorded on a person's driving record only if the person was the vehicle driver.

Law does not apply to (1) a public conveyance commercially chartered for group use, (2) any passenger for compensation in a for-hire motor vehicle, or (3) a privately owned motor vehicle operated by a person in the course or his or her usual employment transporting passengers at the employer's direction.

Ohio

( 4301.62 and 4301.64)

Open container:

Up to $100

(minor misdemeanor)

Consumption:

Up to $250, up to 30 days imprisonment, or both

(4th degree misdemeanor)

A person who pays all or a portion of the fee imposed for the use of a registered, chauffeured limousine pursuant to a prearranged contract, or the guest of such person, when the person or guest is a passenger in the limousine and not sitting in the front compartment where the limousine driver is located.

Oklahoma

( 21-1220 and 37-8)

Open container:

Up to $500, six months imprisonment, or both (misdemeanor); and a $100 assessment payable to the trauma care fund.

Consumption:

A fine of at least $10 but no more than $100, imprisonment of at least five days and no more than 30 days, or both (misdemeanor)

Passengers in the passenger area of (1) buses chartered for transporting people for hire and (2) chauffer-driven limousines designed and used for transporting people for compensation, other than a taxicab.

Oregon

( 811.170)

Up to $300

(class B traffic violation)

Passengers in a motor vehicle operated by a common carrier and used primarily to carry passengers for hire.

Pennsylvania

( 18-7513)

Up to $300, up to 90 days imprisonment, or both (summary offense)

A passenger in the passenger area of a motor vehicle designed, maintained, or used primarily for the lawful transportation of people for compensation, including buses, taxis, and limousines.

Rhode Island

( 31-22-21.1)

1st offense:

Up to $200, up to 6 months license suspension, or both

Subsequent offense:

Up to $500, up to one year license suspension, or both

Rented limousine or bus.

Table 2: -Continued-

STATE

(citation)

PENALTY FOR VIOLATING OPEN CONTAINER LAW

OPEN CONTAINER EXCEPTION FOR PAYING PASSENGERS

South Carolina

( 61-4-110, 61-6-4020, and 61-6-4720)

Up to $100 or up to 30 days imprisonment (misdemeanor)

No exception.

Law does not apply to vehicles parked in legal parking places during functions such as sporting events where law enforcement officers are on duty to perform traffic control duties.

South Dakota

( 35-1-9.1)

Up to $500, up to 30 days imprisonment, or both

(class 2 misdemeanor)

No exception.

Texas

( 49.031)

Up to $500

(class C misdemeanor)

A passenger in the passenger area of a motor vehicle designed, maintained, or used primarily for the lawful transportation of people for compensation, including a bus, taxicab, or limousine.

Utah

( 41-6a-526 and 32A-12-213)

Up to $750, up to 90 days imprisonment, or both

(class C misdemeanor)

A person who has carried an alcoholic beverage onto a limousine or chartered bus in compliance with state law setting parameters for consuming in such vehicle.

Passengers traveling in any licensed taxicab or bus.

Vermont

( 23-1134 and 23-1134a)

Driver:

Up to $25 for possession and up to $500 for consumption while driving

Passenger:

Up to $25

A passenger in the passenger area of a motor vehicle designed, maintained, or used primarily for the lawful transportation of people for compensation.

Washington

( 46.61.519)

Up to $250

(traffic infraction)

A public conveyance commercially chartered for group use.

Any passenger for compensation in a for-hire vehicle licensed according to law.

A privately-owned vehicle operated by a person with a valid license endorsed for the appropriate classification in the course of his usual employment transporting passengers at the employer's direction.

Table 2: -Continued-

STATE

(citation)

PENALTY FOR VIOLATING OPEN CONTAINER LAW

OPEN CONTAINER EXCEPTION FOR PAYING PASSENGERS

Wisconsin

( 346.935)

Up to $100

If driving a commercial motor vehicle, an additional penalty of $10 and an out-of-service order for 24 hours.

Passengers in a limousine or motor bus if the vehicle is operated by a chauffer holding a valid license with proper endorsements and in compliance with local ordinances or regulation.

Table 3: Open Container Laws Not Federally Compliant

STATE

(citation)

PENALTY FOR VIOLATING OPEN CONTAINER LAW

POSSIBLE REASON LAW DOES NOT SATISFY FEDERAL REQUIREMENTS

Alaska

( 28.35.029)

Up to $300

(infraction)

Open container prohibition applies only to drivers. Law does not explicitly prohibit consumption, but is a violation of public safety regulations (13 ACC 02.545).

Louisiana

( 32:300)

Up to $100

Definition of “open alcoholic beverage container” excludes frozen alcoholic beverages in some instances. Prohibition does not apply to passengers and krewe members riding on a parade float. (A “krewe” is an organization that puts on a parade during carnival season.)

Puerto Rico ( 9-5297(f))

$100

(administrative fault)

Law does not (1) explicitly prohibit consumption, (2) extend to traveling on a right-of-way, and (3) clearly apply to passengers.

Tennessee

( 55-10-416)

Up to $50

(class C misdemeanor punishable by fine only)

Prohibition applies only to drivers. Law permits municipalities or counties to adopt their own open container prohibitions.

Wyoming

( 31-5-235)

1st conviction:

Up to $200

2nd within one year of 1st conviction:

Up to $300, 30 days imprisonment, or both

3rd or subsequent within one year of 1st conviction:

Up to $500, six months imprisonment, or both

Prohibition does not (1) extend to travel on a right-of-way and (2) apply to municipalities that have adopted an open container ordinance.

Table 4: States with Consumption Prohibition but

No Open Container Law

STATE

(citation)

LAW PROHIBITS CONSUMING

ALCOHOLIC BEVERAGES:

PENALTY

Arkansas

( 5-71-212)

In a public place.

Up to $100, up to 30 days imprisonment, or both

(class C misdemeanor)

Connecticut

( 53a-213)

While operating a motor vehicle.

Up to $500, up to 3 months imprisonment, or both

(class C misdemeanor)

Delaware

( 21-4177J)

While driving a motor vehicle.

$25 - $100, 1st offense; $50 - $400, subsequent offense within one year

Missouri

( 577.017)

While operating a motor vehicle.

Up to $200

(infraction)

Virginia

( 18.2-323.1)

While driving a motor vehicle.

Up to $250

(class 4 misdemeanor)

West Virginia

( 60-6-9)

In a (1) public place and (2) motor vehicle.

$5 - $100, 60 days imprisonment, or both

No Open Container Law and No Consumption Prohibition: Mississippi

JLK:ts