What Constitutes an “Open Container” in the State of Florida?
Florida law considers an “open container” to be any container of an alcoholic beverage which is 
immediately capable of being consumed from, or has a broken seal. If an open container is not locked inside the vehicle’s glove compartment or trunk, and is not in possession of the passenger in the vehicle, it will be considered to be in the driver’s possession. If the passenger is in obvious physical possession of the open alcoholic beverage, then the passenger, not the driver is the responsible party.
No person—driver or passenger—may possess an open container of an alcoholic beverage or consume an alcoholic beverage inside a vehicle while driving or as the passenger in the state of Florida. Even if the vehicle is parked or stopped within a road (as defined under Florida law), it is still unlawful for a driver or passengers to be in possession of an open container of an alcoholic beverage.
There are a few exceptions to Florida’s open container law, most notably regarding passengers in a bus in which the driver holds a valid commercial driver’s license (in which case the passengers may possess open containers, but not the driver) or passengers in a self-contained motor home which is longer than 21 feet. Florida residents may also be charged with a violation of open container law should they walk out of a bar carrying an open container, however, under these circumstances you may be charged with a criminal violation since the offense did not take place in a vehicle.
Elements of Florida Open Container Violations
If you were driving on a public road or highway, rather than a private road or a parking lot, and had a bottle, can or glass within your reach—or in your purse or pocket—and that container held any amount of an alcoholic beverage inside when the officer found it, then you may be charged with a violation of Florida’s open container laws. The seal on the bottle or can must be broken, and the container’s contents must have been “partially removed.” The ticketing officer must clearly connect the open container to the person being cited. Should there be open containers in the vehicle, but those containers are not within reach of the driver, the driver may still be charged simply for allowing the passengers to have an open container in his or her vehicle.
Florida Statutes Regarding Open Container Laws
Section 316.1936 of the Florida Statutes regarding open container laws state:
Possession of open containers of alcoholic beverages in vehicles prohibited; penalties.—
(1) As used in this section, the term:
(a) “Open container” means any container of alcoholic beverage which is immediately capable of being consumed from, or the seal of which has been broken.
(b) “Road” means a way open to travel by the public, including, but not limited to, a street, highway, or alley. The term includes associated sidewalks, the roadbed, the right-of-way, and all culverts, drains, sluices, ditches, water storage areas, embankments, slopes, retaining walls, bridges, tunnels, and viaducts necessary for the maintenance of travel and all ferries used in connection therewith.
(2)(a) It is unlawful and punishable as provided in this section for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while operating a vehicle in the state or while a passenger in or on a vehicle being operated in the state.
(b) It is unlawful and punishable as provided in this section for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while seated in or on a motor vehicle that is parked or stopped within a road as defined in this section. Notwithstanding the prohibition contained in this section, passengers in vehicles designed, maintained, and used primarily for the transportation of persons for compensation and in motor homes are exempt.
(3) An open container shall be considered to be in the possession of the operator of a vehicle if the container is not in the possession of a passenger and is not located in a locked glove compartment, locked trunk, or other locked nonpassenger area of the vehicle.
(4) An open container shall be considered to be in the possession of a passenger of a vehicle if the container is in the physical control of the passenger.
(5) This section shall not apply to:
(a) A passenger of a vehicle in which the driver is operating the vehicle pursuant to a contract to provide transportation for passengers and such driver holds a valid commercial driver’s license with a passenger endorsement issued in accordance with the requirements of chapter 322;
(b) A passenger of a bus in which the driver holds a valid commercial driver’s license with a passenger endorsement issued in accordance with the requirements of chapter 322; or
(c) A passenger of a self-contained motor home which is in excess of 21 feet in length.
(6) Any operator of a vehicle who violates this section is guilty of a noncriminal moving traffic violation, punishable as provided in chapter 318. A passenger of a vehicle who violates this section is guilty of a nonmoving traffic violation, punishable as provided in chapter 318.
(7) A county or municipality may adopt an ordinance which imposes more stringent restrictions on the possession of alcoholic beverages in vehicles than those imposed by this section.
(8) Nothing in this section prohibits the enforcement of s. 316.302.
(9) A bottle of wine that has been resealed and is transported pursuant to s. 564.09 is not an open container under the provisions of this section.
How Serious Is an Open Container Violation?
While a Florida open container violation is not a criminal violation it does happen to be a moving violation but only if you are being charged as the driver—meaning you will garner 3 points on your license for a conviction—you could also face significant increases in your insurance premiums if you choose to simply pay the fine and not fight your open container charges. Drivers who hold a commercial driver’s license should absolutely challenge charges of an open container violation in FL because a conviction for the offense could have a detrimental effect on your CDL license and, by extension, your livelihood.
If your only charge is an open container violation, you will have to pay a fine, however it is important to note that if an officer sees an open container in your vehicle, it is very likely he will consider the possibility that you are driving under the influence and may perform field sobriety tests or ask you to take a Breathalyzer test.
On the flip side, when an officer pulls you over on suspicion of DUI in Florida, but cannot charge you with that crime, you may be charged with the lesser crime of open container violation. DUI charges are much more serious than open container violations, however you should take both types of charges very seriously and speak to a knowledgeable Florida traffic ticket attorney as soon as possible in order to avoid long-ranging, serious consequences. Your Florida traffic lawyer will ensure your rights are fully protected every step of the way, and do their best to ensure you do not continue to pay for your mistake.
Potential Defenses to Florida’s Open Container Law
The right legal defense to your charges of violating Florida’s open container laws could minimize the consequences or possibly even lead to a dismissal of the charges. Your open container charge attorney knows there are many gray areas concerning open container laws in Florida. The police officer who issued your citation relied solely on his or her perception of the scene in order to make a determination of guilt. Because this determination is fairly subjective, your Florida attorney may be able to contest the officer’s perception. You can, of course, claim you had no idea the open container was in your vehicle—and this may actually be true. The only way to make this defense work for you is to have the passenger who actually opened the bottle or can without your knowledge come to court and say so.
If the alcohol in question was in the trunk of your car, you are not guilty of violating Florida’s open container laws. If the alcohol was in a bus, taxi, limousine or RV (over 21 feet in length) then you cannot be found guilty of violating the open container law. Perhaps the police officer did not have probable cause to pull you over and search your vehicle. For example, if you ran a stop sign or were speeding, the police officer may have probable cause to pull you over, then may see the open container, however the officer is not allowed to pull you over without cause.
Therefore, your Florida open container violation attorney may be able to challenge your stop based on whether there was probable cause. In a similar vein, the open container cannot be discovered during an illegal search and seizure. This means that even if you are technically guilty of the violation, but the police officer only discovered the violation because he or she violated Florida’s search and seizure laws, then your attorney may be able to have you acquitted of all charges.
How a Florida Traffic Lawyer Can Help
If you have been charged with a violation of Florida’s open container laws, it is extremely important that you not take the charges lightly. A highly experienced attorney from our firm can assist you from start to finish with your charges, ensuring you have an accomplished lawyer by your side.
We will provide a thorough evaluation of your case, then clearly present all your options. When you choose to work with an attorney from our firm, you will benefit from our skill and knowledge and will have chosen a law firm with a high rate of success. Our attorneys will bring a strong defense on your behalf, and will never hesitate to fight aggressively on your behalf. Our lawyers have a track record of success which speaks for itself; contact us today for a free case evaluation.
Attorney David A. Haenel, renowned in Florida for his excellent record in criminal defense, DUI, and traffic ticket cases, and has been delivering favorable outcomes for his clients since 2000. With a law degree and a Master of Law in criminal law, his background includes a notable tenure as the State of Florida DUI Prosecutor of the Year
