Are you allowed to drive with an open container of alcohol in your car, even if you are not drinking? Many states have open container laws. These laws prohibit passengers and vehicles from drinking or even having an open container of alcohol in the vehicle. Some states are exceptions, including Delaware. In Delaware, it is legal for passengers to have open containers of alcohol and drink from them while a driver is driving a motor vehicle. However, in Delaware, a driver cannot drink and drive or hold an open container while driving.

Defining an Open Container

An open container needs to meet at least one of three criteria. It is open, it has the seal broken, or it is missing some of its contents. Open containers do not only include fresh bottles of alcohol. An open container can also include alcohol that has been poured into another type of container. In Delaware, it does not matter if a passenger opens the bottle in the car or opens the bottle before getting into the car. The factor that law enforcement officers will consider is whether the container was open in the vehicle.

In states like Delaware that do not have open container laws, passengers can drink in a car while someone else is driving. Wherever you drive within the state of Delaware, passengers can drink out of and carry open containers of alcohol. Remember that once someone crosses over into another state, in which open containers of alcohol are illegal, they can face criminal charges over their passengers’ behavior. Even if the passenger originally opened the container in Delaware. If the car crosses state lines into another state, that state’s laws will apply.

Can Delaware Passengers Drink Alcohol in the Car?

Many people are surprised to learn this, especially from out-of-state. But yes, passengers can drink alcohol in a car in Delaware. Delaware law puts zero limitations on whether your passengers can drink alcohol while you are operating a vehicle. As long as the driver operating the vehicle is not drinking and driving and does not have an open container of alcohol, you will not face criminal charges. The only state that currently allows drivers to drink while driving is the state of Mississippi.

Remember that your passengers will still need to meet  Delaware’s legal age limits to drinking alcohol. In Delaware, a person must be at least 21 years old to drink alcohol. You may encounter a situation in which a local ordinance from a town or city bans consuming alcohol by passengers in a moving vehicle. It is wise to become familiar with all of the local laws regarding open containers where you live.

Will I be Arrested for Having an Open Container in My Vehicle?

The answer to this question is, that it is complicated. You typically will not be arrested simply because you have an open container of alcohol. Suppose the police stopped you and pulled you over in Delaware and you have an open container of vodka in your car. The law enforcement officers may assume that you, as the driver, were drinking along with your passengers. They may administer a field sobriety test.

They may arrest you for suspicion of drunk driving. The legal blood alcohol concentration level BAC in Delaware is .08%. The police officers may ask you to submit a blood or breathalyzer test to determine your blood alcohol level. You can be arrested for a blood-alcohol level of .05% in Delaware if law enforcement finds other evidence of alcohol impairment, which can include finding an open container of alcohol in your car.

Some Delaware drivers may be surprised to learn that passengers can have open containers of alcohol in a vehicle. Most do not know their rights in this type of situation. It is wise to become familiar with Delaware’s open container laws. For example, police can assume that you have been drinking while driving because someone in your vehicle has been legally drinking alcohol from an open container. We recommend that you discuss your case with a lawyer before you talk to the police. Just because your passengers have been drinking alcohol in your car legally, it does not mean that the police have enough evidence to arrest you for drunk driving.

Open Containers in Public Spaces in Delaware

Delaware’s open container laws can also apply to public spaces. These laws aim to ensure that public places are safe and not disturbed by people who have become intoxicated. Public spaces include parks, public sidewalks, neighborhoods, and the steps in front of an apartment building or condominium. Since Delaware does not have an open container law, most citizens will assume that it is legal to possess alcohol in an open space.

However, unless there is a local ordinance that permits open containers of alcohol in public spaces, you should be careful. Very few cities allow open containers in public except for Sonoma, California, Las Vegas, Nevada, and New Orleans, Louisiana. Even in these cities, you may be required to put alcohol in a neutral container, such as a cup from a restaurant or bar.

Can I Have Marijuana in an Open Container in My Car?

You should not assume that since it is okay for a passenger to have an open container of alcohol, they can also have marijuana in a vehicle. Marijuana is still illegal in Delaware. Whether your passengers have marijuana in an open container or not, they can face charges for using marijuana. Just because marijuana is legal in some states, it may be illegal for passengers or drivers to use marijuana while the car is in operation.

Discuss Your Case With a Delaware DUI Lawyer

If you are facing alcohol-related criminal charges, you need an experienced criminal defense lawyer on your side. Contact the Delaware DUI lawyers at Schwartz and Schwartz today to schedule your initial consultation.