Open Container Offenses in Charlotte, North Carolina

North Carolina G.S. 20-138.7(a) – Misdemeanor Open Container  

This is the misdemeanor open container and makes it illegal for a person to drive a motor vehicle with an open container in the passenger area while consuming alcohol or while alcohol remains in the driver’s body. To be found in violation of G.S. 20-138.7(a) the state must prove beyond a reasonable doubt that an individual:

1. drives
2. a motor vehicle
3. on a highway or the right-of-way of a highway
4. while there is an alcoholic beverage in the passenger area in other than the unopened manufacturer’s original container and
5. while the driver is consuming alcohol or while alcohol remains in the driver’s body

A conviction under G.S. 20-138.7(a) inflicts both criminal and DMV punishments. Criminally, a first offense under G.S. 20-138.7(a) is a Class 3 Misdemeanor. A second or subsequent offense is a Class 2 Misdemeanor. For purposes of the North Carolina Division of Motor Vehicles (NCDMV), a violation of G.S. 20-138.7(a) is considered a moving violation and points will be assessed against your driver’s license. In addition to being assessed points on your driver’s license a conviction under G.S. 20-138.7(a) can result in license revocation. A first conviction does not trigger a license revocation but a second conviction results in the six-month revocation and a third or subsequent conviction results in a one-year revocation of one’s driver’s license.

Police officers frequently use an alcohol screening device to demonstrate that the driver has alcohol in his/her body when seeking a conviction under 20-139.7(a). The alcohol screening device, also known as a PBT or roadside breath test, must be performed on an approved device and must be used in accordance with the applicable regulations set forth in 10 N.C.A.C. 41B, §§ .0501 - .0503. Only certain evidence gained from the PBT can be used in court. The specific alcohol concentration cannot be used in court, however, whether or not there is a presence of alcohol can be used.

North Carolina G.S. 20-138.7(a1) – Infraction Open Container

In order to be found guilty of the infraction open container one must be in possession of an open alcoholic beverage in the passenger area of a motor vehicle. The state must prove that one:

1. possesses an alcoholic beverage other than the in the unopened manufacturer’s original container or (b) consumes an alcoholic beverage
2. in the passenger area of a motor vehicle
3. while the motor vehicle is on a highway or the right-of-way of a highway.

Only the person who possesses or consumes an alcoholic beverage may be charged with a violation of G.S. 20-1387.7(a1).

A violation of G.S. 20-138.7(a1) is an infraction, punishable by a maximum fine of $100.00, and is not a moving violation, and accordingly, no driver’s license points will be assessed against one’s driver’s license. However, the same license revocation provisions that apply to the misdemeanor open container, G.S. 20-138.7(a), apply to the infraction open container under G.S. 20-138.7(a1). Thus, there is no revocation for a first conviction, but upon a second conviction there is a six-month revocation and for a third or subsequent conviction a one-year revocation.

If you a charged with an open container violation in North Carolina contact the experienced lawyers at Browning & Long, PLLC. Todd and Howard prosecuted thousands of open container violations while they were Assistant District Attorneys in Charlotte, North Carolina and will use their unique experience to thoroughly review your case and seek the most advantageous outcome possible.