Can the Passenger Drink ?

Anyone with a driver’s license should know that drivers are not permitted to drive while under the influence of alcohol or other drugs. But a question that often arises is whether a passenger can drink alcohol in a car? Usually they are not but the answer can depend on specific state and local laws.

Most states have laws prohibiting the presence of open cans, bottles, or other unsealed containers of alcoholic beverages on sidewalks, streets, and inside vehicles. So by default, a passenger drinking an alcoholic beverage also is in possession of an open container. Some states allow unsealed containers of alcohol in secure locations only, such as a locked glove compartment or trunk.

A total of 43 states have open container laws in place, 40 of which conform to federal standards outlined in the Transportation Equity Act for the 21st Century (TEA-21), which mandates open container laws and other traffic safety measures.

Drivers may be cited for an open container violation if they have the container on their person or within reach. But even if only the passenger is in possession of an open container, both the driver and the offending passenger may be cited for a violation. In any case, the blood alcohol concentration (BAC) of an offending passenger is irrelevant.

But can a passenger drink alcohol in an automobile in the absence of laws banning open containers?

The short answer is yes. As long as there are no local ordinances banning open containers in vehicles, passengers in states without such laws can in fact drink alcohol in a moving vehicle. Mississippi is the most permissive, even allowing drivers to drink as long as they remain under the legal BAC limit.

Some municipalities have carved out exceptions to open container laws in an effort to boost tourism, such as the French Quarter in New Orleans, but the majority of such ordinances do not allow open containers in vehicles (typically limited to streets and sidewalks). The French Quarter, infamous for its drive-through frozen cocktail vendors, allows both drivers and passengers to have open containers of alcohol in vehicles, as long as the driver is not drinking.

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