Can I Get a DUI if My Passenger is Drinking?

Only the person driving or in physical possession of a vehicle can be cited for DUI or penalized for refusing a chemical test. The answer to the question of whether a passenger’s drinking can result in a DUI against the driver is, No. But the driver may still be in legal trouble. 


In Florida, the law prohibits the possession of an open container of alcoholic beverage in a vehicle, whether it is moving or not. That statute, F.S. § 316.1936 specifies how and when alcohol may be possessed or transported in a motor vehicle. The law is much more stringent than you might think. 


What Counts as an Open Container of Alcohol? 


You can be cited for possessing an open container of alcohol in violation of the law if the container is “immediately capable of being consumed from” or if the seal of the container is broken. That means even if you’ve replaced the screw cap, the container is still considered open because the seal was broken.  


If you do have a container of alcohol with its seal broken, you may avoid a citation if the container is located in a “locked glove compartment, locked trunk, or other locked non-passenger areas of the vehicle.”  


Whose Open Container Is It? (Who Gets the Citation?) 


Unless the passenger is in physical control of the bottle or other alcohol container, the driver is deemed to be the one in possession of the illegal alcohol. The legal concept of “constructive possession” holds that a person is in legal possession of an object if it is within their control and dominion. The Florida open container law specifically adopts the principle of “constructive possession” to hold the driver responsible for an open container anywhere in the car unless  


  • the passenger has physical control of the container. or 
  • the open container is locked in the glove compartment, the trunk, or “other locked non-passenger compartment.”  


Can the Passenger Get Cited for the Open Container of Alcohol? 


Yes. If the passenger has “the physical control” of the open container. Does that mean the passenger must be holding the container for the law to determine the container is theirs? No. If the passenger has the bottle balanced on their seat, pinched between their knees, they are in control of the container. Similarly, they may be in possession if the bottle is between their feet on the passenger side floor mat. 


Proof of Intent to Possess the Open Container Is Required 


What if a passenger has an open bottle of liquor in a backpack they placed on the rear seat before they climbed into the front passenger seat? Will the bottle be chargeable to the driver because the bottle is not in the passenger’s physical control? Or will the operator successfully argue that the passenger remained in physical control of the bottle because only the passenger had “knowing possession” of the contents of the backpack? 


If the driver had no knowledge of the open liquor bottle’s presence, then they can have “no intent” to be in possession of it when it was in the backpack. 


Keep Reading> What is Probable Cause for a DUI in Florida? 


Is an Open Container of Alcohol Still Illegal If You’re Parked on the Side of the Road?


Yes, the law applies even if the vehicle is parked along the roadside. In fact, the Florida legislature was extremely thorough in writing this statute because it extended the law to include not only streets, roads, and alleys, but also: 


  • associated sidewalks, the roadbed, the right-of-way, and all culverts, drains, sluices, ditches, water storage areas, embankments, slopes, retaining walls, bridges, tunnels, and viaducts necessary for the maintenance of travel and all ferries used in connection therewith. 


Citation Includes a Mandatory Hearing Appearance 


Getting cited by police for possessing an open container of alcohol in Florida requires the person cited to appear for a hearing before a hearing officer. The officer does not need the person they’re citing to sign the citation or acknowledge their receipt of it. 


The officer will submit a certification with the citation that they delivered it to the person being cited. 


Possession of Open Container in Vehicle Is a Noncriminal Traffic Violation 


Being cited for possession of an open container of alcohol in a vehicle is not a criminal offense and evidence of guilt will not be admitted as evidence in any other proceeding.  




The penalty for having an open container of alcohol in a vehicle is different for a driver who is cited than it is for a passenger. 


  • Operator Penalty 1st Offense: $90 plus court costs, fees, and assessments  
  • Passenger Penalty 1st Offense: $60 plus court costs, fees, and assessments 


The Florida “points” system that tracks driving offenses imposes points on the driver if they are cited for an open container violation. The same goes for a passenger who is cited.  


Defending Open Container of Alcohol Citations 


Experienced criminal defense lawyers understand how each offense is prosecuted and what elements of every offense are problematic for the government to prove. In the context of open containers of alcohol, there is more at stake for many drivers than just a $90 fine and some court costs. 


If you are a driver with a high number of points on your driving record within a specific period, the three points you receive for the open container offense might be the ones that put you over the limit, resulting in your loss of your driver’s license for 30 days, or perhaps a year. 


No offense is so minor that it has no effect on your life, even if it doesn’t seem very serious to you at the moment. And every offense has a defense. 


  • Was the operator of the vehicle aware of the alcohol container’s presence? 
  • Was there any alcohol in the container? 
  • Whose vehicle is it? 
  • Did the passenger possess the container or did the operator?  



Tampa DUI Charges 


If you have an issue involving an open container of alcohol citation or any other traffic offense, or if you have misdemeanor or felony charges pending against you, contact our experienced DUI attorneys at Stechschulte Nell for a case review at 813-218-1244.  

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