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Fairfax Criminal Defense Blog


Posted by John A. Kassabian | Jun 02, 2022

Let's say you went to visit a friend. You had a lovely evening and drank part of a bottle of wine that you really liked. Your friend offered the remainder of the bottle to you. Thinking nothing of it, you propped the bottle on the passenger seat and started driving home.

Then, you get pulled over. You pass the field sobriety tests and the breath test, but you have that bottle of wine in your car. Do you get charged with “possession of open container while operating a motor vehicle"?

The answer to that question might very well be “yes,” according to Virginia's open container law. The police officer may suspect that you have been drinking while driving. If you find yourself in a position where you may be charged with Driving Under the Influence (DUI) or possession of open container, a Virginia criminal defense attorney can help.

John Kassabian of Kassabian & Kassabian, P.L.C., in Fairfax, VA, can help you learn more about whether your DUI will be compounded with open container. Consult with him by calling 703-750-3622.


In Virginia, it is not legal to consume alcoholic beverages while driving, but it is also presumed that a driver may be drinking alcohol while driving if an open container is in the passenger area. An open container is a bottle, flask, can, or any other vessel that contains alcohol that is not sealed as sold. The passenger area is defined as “any area in reach of the driver,” so that could include the glove compartment, if unlocked. The trunk and the back seats are not considered to be within reach of the driver.


If a passenger in the vehicle has possession of an open container, and the driver can reasonably be discerned to have been drinking, due to smelling of alcohol or otherwise portraying characteristics of impairment, then the driver still may be charged with possession of an open container or DUI.

Even if the driver was not aware that the passenger possessed an open container, it is still possible for the driver to be charged with open container.


Virginia also prohibits “drinking alcoholic beverages, or offering to another” in public places. If someone is drinking alcohol at a licensed event or in a licensed area, such as a sports arena or at a music festival, that is permitted. However, no one can simply walk around with an alcoholic beverage in public in Virginia—which is sometimes referred to colloquially as “walking open container.” Further, if an individual offers an alcoholic beverage to another person, they may be charged with drinking in a public place; this is true whether or not the offer was accepted.


Theopen container statute in Virginia associated with operating a motor vehicle stipulates that violation of the law results in being charged with a Class 4 misdemeanor. The same is true for drinking alcoholic beverages in public places. Class 4 misdemeanors in Virginia come with a maximum fine of $250. 

Although the actual fine may not be significant to many people, the fallout of the charge and a criminal conviction may be; it is a criminal conviction that will appear on your record and may impact you professionally as it relates to work advancement, existing security clearance, future clearances, getting into colleges and many other collateral consequences. This is a charge that should not be taken lightly!

Offenses associated with open container laws are sometimes compounded with other charges, such as DUI, disorderly conduct, obstruction of justice and trespassing.

If you are in a situation where you need help understanding and defending charges associated with open container, drunk in public, or DUI, John Kassabian, criminal defense lawyer for Prince William and Fairfax Counties, can provide you with a free consultation. Go here to learn more about Kassabian & Kassabian.

About the Author

John A. Kassabian

John A. Kassabian joined the family firm in 2002 after having served as a Prosecutor in Fairfax County and Prince William County. Specializing in criminal defense, traffic defense and civil related matters, John has an extensive criminal law background and has handled a wide variety of cases for ...

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