Virginia Open Container and Drinking While Driving Laws

Virginia Open Container Law:
Drinking While Operating

Virginia Code § 18.2-323.1 discussed by our Ashburn legal professional and Fairfax Criminal Attorney in Virginia

Common Virginia Alcohol Related Offenses

  • DWI
  • Underage Possession
  • Drunk in Public
  • Operating Under the Influence
  • Open Container

Alcohol-related crimes are relatively common in Northern Virginia.*

  • As a Ashburn advocate and Fairfax criminal attorney, I have found that most people DO know how serious a DWI is in Virginia. The problem?
  • …many of the same people DON’T know how serious other alcohol-related offenses are, because they fail to realize the worst consequences, in some cases, are not found in the Virginia Code.

This page discusses a Virginia Class 4 Misdemeanor, drinking while driving, the Virginia open container rule. You need to first be aware of what is prohibited, and what is considered a rebutable presumption. A rebutable presumption means the following: if a certain set of facts exist, a conclusion is assumed. But since it is a rebutable presumption and not an irrebutable presumption, a defendant can offer evidence to overcome the presumption.

*see the infographic published by the Vincenzes Law Firm’s research team to learn how common alcohol-related offenses were in Fairfax County, Virginia, compared to other offenses, during the summer months last year, in 2013.

On this page, you will find these sections: Breakdown of the law; Practical Concerns; and, Other Alcohol Related Offenses

Our Fairfax Criminal Attorney’s Breakdown of the Law

The crime is officially titled,

Drinking while operating a motor vehicle; possession of open container while operating a motor vehicle

The law has three (3) subsections (A,B, and C). Some laws are not easy to understand, and many people find it helpful to read a lawyer’s explanation – or interpretation of sorts – of the law, instead of the actual code section’s words. To read the code yourself, you may do so via the legislative Code of Virginia here.

(a)    It is against the law to consume alcohol while driving on a public road, even if you are not dangerously intoxicated.

(b)   These 3 things can lead to a presumption against the driver (that he/she was drinking while driving):

  1. bottle was found in the passenger area
  2. bottle was missing some alcohol (it has been opened)
  3. something you did can be reasonably associated with consumption of alcohol (e.g., slurred speech, odor, etc.)

(c)    If charged, there is already a record in public view, because it is a Class 4 misdemeanor. If you are convicted, you will never be able to expunge it (practically speaking).

Definitions for purposes of this law:

open container – container with alcohol inside that is not factory sealed.

passenger side – See what it does and does not refer to below:


  • Driver’s side seat/area
  • Passenger area
  • Unlocked glove box compartment
  • Any area where the driver can reach to

Does Not Include:

  • A  typical passenger car trunk
  • The back of an SUV (the kind of trunk-area that is not separated in such vehicles)
  • The main living area of a motor home
  • Passenger area of a taxi or limo (but only when engaged in performance of duties)

virginia drinking while driving law
Our Fairfax Criminal Attorney and Ashburn Defense Lawyer, Brenton D. Vincenzes, explains to men and women in Virginia all the time:

Just because you have a pending  Class 4 misdemeanor in Virginia and do not face jail or extraordinarily high fines, ask yourself what your permanent and public criminal record means to you and your future. Most adults — young and old — are stronger potential candidates with a spotless record. An alcohol-related offense does not look good.

This page includes information I hope you find helpful. If you face a charge and are not here for some other purpose, I encourage you to contact a Ashburn criminal attorney sooner rather than later. You can start the process painlessly by requesting a time to talk (or email), via the contact form on our website and this page or by calling:


Virginia Open Container Rule: The Worst Consequence?

No, violation of this law is not a felony or even a Class 1 misdemeanor, and jail time is not typically a concern (unless other charges accompany the violation of § 18.2-323.1). That said, carefully consider the effect a conviction could have on your life.

An alcohol-related offense could negatively influence a person’s:

  • ability to get a security clearance
  • authorizations and certifications
  • licensing requirements
  • health, legal, and academic field scrutiny

With so many young adults now choosing to go to college or enter the workforce with a relatively broad skill set, it is important to be competitive. When it comes to those in our community with  promising futures, like Ashburn high school students, for example, keeping a criminal record clean for purposes of college applications and future employment prospects is so very important.

One important point you must be aware of, if charged, is the nature of the public record system.

If you have been charged with a Virginia misdemeanor or felony (a criminal offense), the record is considered public, and it will be a part of your record for life. The only way to remove it is to expunge. Expungement is only possible if you are not convicted, or if the charge is dropped (technically speaking, a governor could pardon your offense. Unlikely). In sum: if you are facing a charge and do not want it on your criminal record, you need to go to trial and win, or, the charge needs to be dropped. This is not the same as a case dismissal due to some first-offender compliance agreement.

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Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.

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