If you were pulled over for drunk driving and are now facing both a DWI and an open container charge, you may be unclear about how the two connect. In such cases, it’s important to understand what North Carolina’s open container law actually says and how it can affect your DWI case. Regardless of whether you reside in the state or live in another jurisdiction and are passing through, an open container charge in North Carolina isn’t just a minor add-on to a DWI. While these charges can shape probable cause, strengthen the prosecutor’s narrative of impairment, and complicate plea negotiations in a DWI case, it’s vital to have a solid and coordinated defense strategy.

Key Takeaways

Understanding North Carolina’s Open Container Law

North Carolina’s open container law makes it illegal to have an open alcoholic beverage anywhere in a vehicle’s passenger area. There are two separate sections of the law: a violation of the law can result in misdemeanor charges if coupled with a driver’s consumption of alcohol or impairment, or it can be a non-moving infraction that applies to any occupant in the vehicle without requiring impairment. While an infraction is a non-criminal violation, similar to a traffic ticket, it can still come with a monetary fine and impact your driving privileges.

Under the law, the applicable passenger areas include:

• Any area designed to seat the driver and passengers
• Any area within the reach of a seated driver or passenger
• The glove compartment

The trunk or area behind the last upright seat of a station wagon, hatchback or similar vehicle is not considered the “passenger area” for the purposes of the law. Notably, a container is considered “open” under N.C.G.S. § 20-138.7(f) if the seal has been broken, regardless of whether the cap has been put back on. The law specifically excludes motor home living quarters, house trailers, and for-hire vehicles.

A DWI and open container charge nearly always show up together since officers typically find the open container during the same stop that leads to a DWI arrest. While the violation is an infraction on its own, the penalties increase when an individual is simultaneously charged with impaired driving. When also facing DWI charges, a violation of the open container law is considered a Class 3 misdemeanor for a first offense and a Class 2 misdemeanor for a second or subsequent offense.

Does an Open Container Make Your DWI Case Worse?

An open container charge isn’t specifically named a “grossly aggravating” or “aggravating” factor in a DWI. This means they aren’t listed as factors that impact the severity of sentencing. However, it can still shape how a case unfolds. For instance, it can corroborate the officer’s observations of alleged impairment, or qualify as “any other factor that aggravates the seriousness of the offense” under N.C.G.S. § 20-179(d)(9). It can also make plea negotiations more complicated.

In addition, an open container found in your vehicle during a DWI stop can support an officer’s reasonable suspicion or give rise to probable cause to make the arrest. A judge or jury may be swayed by the narrative the prosecution presents in connection with the discovery of the open container. But nevertheless, it’s crucial to keep in mind that the odor of alcohol or the presence of an open container isn’t determinative of guilt in a DWI case. The state still needs to demonstrate impairment beyond a reasonable doubt to obtain a DWI conviction.

The Combined Penalties: Jail Time, Fines, and License Consequences

The penalties for a DWI will depend upon the facts and circumstances surrounding the case. However, when a DWI is combined with an open container charge, the total exposure is often more severe than a driver might expect. There is a tiered structure for sentencing under North Carolina law, which includes Levels One through Five, and Aggravated Level One. Depending on the sentencing level, a conviction can result in 24 hours to three years in jail. The penalties for an open container charge are as follows:

• Up to 20 days in jail for a first misdemeanor conviction
• Up to 60 days in jail for a second misdemeanor conviction
• Up to a $100 fine for a non-moving infraction (no jail time is possible for an (a1) violation)

Significantly, the criminal consequences of a DWI and open container conviction are separate from the DMV consequences. While an open container charge under N.C.G.S. § 20‑138.7(a) is a moving violation that can add license points and even trigger a revocation upon a second or third conviction, an (a1) non-moving violation does not add points. But it can carry the same potential for license revocation.

For those who live out-of-state, North Carolina reports violations back to home jurisdictions under the Driver License Compact. Any conviction in North Carolina would follow you regardless of where you live.

Building a Solid Defense to an Open Container Charge in Johnston County

Critically, an open container charge doesn’t always mean a conviction. A skilled criminal defense attorney can evaluate the facts and circumstances of your case and build a solid defense on your behalf. Some defense angles can include arguing:

• The container was not “open” in accordance with the statute
• The police report does not establish who possessed the open container
• The container was not within reach in an applicable passenger area
• The state cannot prove the container contained alcohol
• The initial traffic stop was not legally valid

Police officers often fail to document the elements properly in these cases. If the prosecution is unable to prove them beyond a reasonable doubt, this gap can create essential leverage for the defense.

An open container charge should never be treated as simply a ticket to pay off. It should be taken just as seriously as the underlying DWI matter since resolving it in isolation can potentially weaken your DWI defense leverage. While both open container charges and the relevant DWI matter are typically heard together in one court case, it’s vital to have a knowledgeable criminal defense attorney who can develop a tailored and effective defense strategy.

Contact an Experienced Johnston County DWI Attorney

If you are facing a DWI and open container charge in North Carolina, it’s important to have a criminal defense attorney by your side from the outset of your case. Representing clients in Johnston County and throughout North Carolina, the DWI defense attorneys at Reece & Reece, Attorneys at Law can assess the facts of your case, challenge the prosecution’s evidence against you, and ensure your rights are protected at every step of the way. Call (919) 300-1249 or contact us online to schedule a consultation and learn how we can help.