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Drinking Alcohol in a Motor Vehicle

Drinking alcohol in a motor vehicle is one of the most common criminal charges brought against persons in California.  The courts in Long Beach are tough on those accused of offenses related to drinking and driving. Normally, the penalty for a first-time offense ranges from fines to a maximum of six months’ jail term. The penalty goes up for a second, third, or fourth offense. The worst part is that if convicted of this offense, the conviction remains on your criminal record and this could have negative effects not only on your car insurance and credit but also on your employment status.

If not handled seriously, the charges could have severe implications on the future of the offender. For this reason, you will need Long Beach Criminal Lawyer familiar with the legal technicalities related to drunk-driving cases and who can apply proven defense strategies in your defense. An attorney with a track record of successfully representing clients and having their charges dropped would be a great resource. Whether or not you were tested above the legal blood alcohol limit, do not assume that your case is lost. A seasoned lawyer from Long Beach Criminal Lawyer can have the charges dropped and can also help clear the arrest record from your name. Contact us today at 562-304-5121 for a free, no obligation consultation with one of our DUI attorneys.

Vehicle Code 23221- Drinking Alcohol in a Vehicle

Under California's “open container” laws, it is against the law for any person including driver and passenger, to drink an alcoholic beverage while in a motor vehicle on a public road. Open container laws are set rules controlling whether passengers can drink alcoholic drink while in a motor vehicle. Having alcohol in your car is not against the law provided that the containers are not opened.  Any opened bottle of alcohol found in your car is evidence enough to earn the driver an Open container citation. It is important to note that even a bag of empty alcohol bottles you’re planning to take to the recycling center can amount to an infringement of California’s open container law depending on the position of the bottles.

This law is only applicable to open containers held in the cab of the motor vehicle or anywhere accessible to the passengers and driver while the vehicle is on the move. Empty alcohol containers in the trunk of a car or the back of a truck, or anywhere that is inaccessible by both the driver and passengers are acceptable.  These laws are basically meant to forbid driving with an opened alcoholic beverage in the car even if you are not drinking it. Luckily, this crime doesn’t carry severe penalties or stigma similar to those of California DUI conviction.

VC 23221 specifies:

  • What on a public “highway” or the right-of-way of a public highway means
  • Proscribe the consumption of any alcoholic beverage and possession of an open alcoholic beverage container in a car or other motor vehicle. This applies to all alcoholic beverages.
  • Classify the passenger area of any given motor vehicle; any area intended for drivers and passengers to seat while the motor vehicle is in operation and even an area that is easily accessible to the passenger and driver while in their seating positions, including the glove compartment.
  • Classify main enforcement. Under a primary enforcement law, law enforcement officers have the right to enforce the law without necessarily demonstrating that they had probable cause to believe that another breach had been committed.

Legal Definition of Drinking Alcohol in a Motor Vehicle

To be charged with Vehicle Code 23221violation, there are three elements that must be fulfilled:

  • A vehicle occupant, either a driver or a passenger drank an alcoholic beverage,
  • In a motor vehicle, and
  • On a “highway.”

For instance, James has some friends over to his home to share a bottle some wine before they all go out for lunch. Being the designated driver, James does not want to be arrested for California DUI, so he chooses to have any of the wine. When they leave for their lunch reservation, James’ friends are still not done with their wine. Due to the limited time, they decide to bring their glasses into the car for them to finish on their way to the restaurant. If they are stopped on the way by police, all of James’ friends but not James who happens to be the driver could be arrested for drinking alcohol in a motor vehicle.

 “Motor vehicle” 

This refers to any vehicle that is self-propelled. California’s law against drinking in a motor vehicle does not, however, apply to passengers in taxis, buses, and limousines licensed to ferry passengers from one point to another. The best example is rented limousines and “party buses”.


This is any road or another place that is open to members of the public for purposes of vehicular travel and is publicly maintained. Therefore, this does not mean only limited access freeways. For instance, Jim owns a large luxury ranch that has numerous paved roads passing through it; They’re not open to the public and Jim maintains them using his own resources. Often time, Jim and the ranch employees drive guests on these roads while touring them to different points of the ranch. During these rides, the guests often consume alcoholic beverages and drivers at times do as well. In this case, neither the driver, employees nor the guests are guilty of violating California’s Vehicle Code 23221 VC provided that they only drink while on the ranch’s roads. This is due to the fact that the ranch’s roads are not public and thus do not meet the element of “highways”.

Possible Penalties for The Violation of Vehicle Code 23221 VC 

Under California law, violation of Vehicle Code 23221 VC is an infraction, which implies that the only punishment one can encounter for drinking alcohol in a motor vehicle is a maximum fine of $250. The exemption of this decree applies to cases involving individuals under the age of twenty-one (21), which is a misdemeanor offense charged under Vehicle Code 23224 VC. Several related sections of the California Vehicle Code provide for more serious penalties for individuals under the legal drinking age guilty of drinking alcohol in motor vehicles. Simply put, drinking in a motor vehicle may be a very serious offense for minors but not for persons above 21 years.

However inconsequential these violations may seem, they are likely to affect your California DMV record, and if convicted in relation with DUI, you are likely to be sentenced to a mandatory jail sentence.

For example, any individual under the age of 21 who knowingly drives a motor vehicle that contains an alcoholic beverage can be charged under Vehicle Code 23224 VC, even if no one is drinking. This is another California open container law and mostly applies if the minor is transporting the alcoholic beverage for work or is not in the accompaniment or acting at the direction of a parent or any other responsible adult relative.  The same applies to any minor in a motor vehicle who knowingly controls or possesses alcohol.

Possible Legal Defenses

Although the penalties for drinking alcohol in a motor vehicle are relatively mild, it is still significant to fight Vehicle Code 23221 charges that have been brought against you unjustly. There are several California legal defenses that a seasoned criminal defense attorney can present to the courts on your behalf. Some are more particular to the charges whereas others are more general. Some of the common defenses to this offense include:

  • Insufficient evidence

A police officer may assert that he/she saw you drinking alcohol in a motor vehicle, but he/she could easily have been wrong or be lying.

  • You were drinking alcohol in a taxi, bus, limousine, camper, or "housecar"

You can also avoid a drinking in a motor vehicle conviction if you are able to show that the motor vehicle you were using was a for hire vehicle. Passengers in or drivers of a taxi, bus, limousine, camper or housecar are excused from being prosecuted under California's open container laws for drinking in a vehicle. It is important to note that this exemption is only applicable if there are no underage (below 21 years) on board in any of these motor vehicles. Also, open containers are allowed inside these vehicles only if they are properly stored. This exempt applies to limousines given that alcohol may be locked inside these cars in an area usually occupied by passengers.

  • The alcohol was in the trunk of the car

If you were caught driving with an open container in the trunk of your car, you are culpable of violating California's open container laws. In case there is no trunk in your car, you should be acquitted if the open container was in a locked container or an area of the vehicle that is not usually occupied by people.

  • You were noticed drinking alcohol during an unlawful search and seizure

Even if you are technically responsible for violating California’s open container laws but the law enforcement officers discovered the open container because they contravened California's search and seizure laws, with the help of a qualified defense attorney you could be in a position to have your charges dismissed based on this reason.

This implies that if the cops noticed that were drinking or an open container:

  1. devoid of probable cause
  2. without arresting you for another offense, or
  3. without your consent to search your motor vehicle,

It may be possible to get the evidence disqualified and the case against you dismissed.

  • The law enforcement officer did not have probable cause to investigate you

Even if you violated VC 223221 by drinking alcoholic beverage which amounts to violation of California's open container laws, your charges should be discharged if the police officer who discovered the open container in your car did so without probable cause. Under the California law, Probable cause refers to a reasonable belief that a crime is or was happening. Probable cause is the government’s way of giving members of the public an assurance that law enforcement officers cannot stop any person they wish at any time they wish. If for instance, you were spotted speeding or ran a stop sign; the police would be at liberty to pull you over. If at that point they discover an open alcohol container, then the charges against you would be legitimate. But if it happens that the police pulled you over for no legal reason and then noticed that you or your passengers are drinking in the vehicle, a probable cause challenge is inevitable. 

For example, the respondent and a friend are parked in a motor vehicle in his driveway visible from the street. As police drive by, they see him drinking an alcoholic beverage and come close to cite him for violation of VC 23222(a). The cops request the respondent and the friend to exit the vehicle, once they are out; one of the police notices a crate of beers. Since a private driveway does not meet the criteria of a highway as one of the elements of VC 23221, the police lacked probable cause to approach the vehicle, given that there was no crime being committed.  As a result, an open container is not admissible as evidence, and that may lead to the dismissal of the charges brought against the respondent.

Speak to a Seasoned Defense Attorney

It is important that you have an accomplished and aggressive defense attorney fighting on your behalf. At Long Beach Criminal Lawyer, our lawyers are tough negotiators who never settle for less. We are well acquainted with the details of the law and understand how best to dissect the evidence for possible weaknesses in the case. Our aggressiveness in cross-examining witnesses plays a big role in helping our clients win their case.

We have a committed team of defense attorneys who work tirelessly for our clients with the primary goal of achieving nothing but the best outcome possible. They will aggressively defend your case and leave no stone unturned. And when your charges are dropped, we will help seal your arrest record and remove it from the public eye. Contact us today at 562-304-5121 to schedule a consultation with an expert DUI attorney. 

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