Texas Penal Code Sec. 49.031(1) states: “Open Container” means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
So, what does that mean? Well, an open container is obviously not a bottle or can which hasn’tbeen opened.
Here are some examples of open containers; (1) a can which has been ‘popped’ or (2) a bottle which has had the lid twisted off. Either of those can still be completely full, without even a sip taken from it, yet it is still an open container… even a bottle which has had the top removed and then put back on. (3) A cup with or without ice which contains any amount of alcohol, whether straight or mixed. (4) A ‘runner’s bottle’ or some other kind of drink holder which contains any amount of alcohol.
So what is an ’empty’? A can, bottle, cup or any other container which is completely empty is no longer an open container…it is trash! You can have 100 open beer cans in your floorboard and as long as each one of them is empty, they are trash, and nothing more.
However, here is a point of argument…. A container which is technically empty, but still is cool to the touch and/or has condensation on the outside is considered an open container. That’s not in the legal definition, but case law has legislated that it is for all purposes an ‘open container’.
Anyone in your car can be charged. The offense is a Class C Misdemeanor, punishable by a fine only, not to exceed $500. No jail.
What it means to the driver… he/she will be charged with a DWI and the laws double the minimum jail time from three to six days in jail. If the driver is exonerated (set free) of the DWI, he/she may still face the charge of the open container.