Open Container Law Florida

Experienced Representation From Our Melbourne DUI Lawyer

One of the most under-the-radar alcoholic driving offenses is the Florida open container offense. Many people mistakenly believe that if they are not the person driving a vehicle, that they can consume alcohol in the car. This is not the case.

Considering that an individual can be charged with possessing an open container during the operation of a motor vehicle simply because of a misunderstanding of the law, speaking with an experienced Florida criminal defense attorney is imperative.

At Law Offices of Bryan J. McCarthy, our attorney is very familiar with Florida drinking laws and have consistently defended people accused of drunk driving throughout Melbourne, Florida.

Our office at 2715 North Harbor City Blvd, Ste. 4 Melbourne, FL 32935 takes cases in Brevard County, and in areas like: Volusia County, Seminole County, Osceola County, Indian River County and Orange County, FL.

Are you being charged with a DUI because you were driving with an open container in Florida? Call The Law Offices of Bryan J. McCarthy today at (321) 248-7742 or contact us online to start your defense! 

Can I Drink As a Passenger in Florida?

Florida Statute § 316.1936 prohibits open alcoholic beverages that are immediately capable of being consumed during the operation of a motor vehicle. The Statute also applies to passengers. Therefore, being in the passenger seat or the back seat of a vehicle does not give an individual permission to drink alcohol.

Is it Against the Law to Have an Open Container While Walking in Florida?

Although not technically the same as open container law, which refers to alcohol inside a motor vehicle, many people wonder if it is legal to walk around in public with alcohol. Under Florida Statute § 856.011, it is illegal to drink alcohol or be intoxicated in a public place. Both crimes are considered second degree misdemeanors.

Elements of Open Container Law In Florida - Statute § 316.1936

Having a designated driver is important in any situation where alcohol consumption will be involved. Having a designated driver, however, does not give an individual the right to drink anywhere he or she pleases.

Florida Statute 316.1936 makes it illegal to have an open container of alcohol in a car. To convict an individual under the Open Container Statute, the State must show that the individual violated the Statute beyond a reasonable doubt. Fla. Stat. § 316.1936 states the following:

• It is unlawful for any person to possess an open container of an alcoholic beverage or to consume an alcoholic beverage while operating a vehicle in this state or while a passenger in or on a vehicle being operated in this state.
• It is unlawful for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while seated in or on a motor vehicle that is parked or stopped within a road. Passengers in vehicles designed, maintained, and used primarily for the transportation of persons for compensation and in motor homes are exempt.
• An open container shall be considered to be in the possession of the operator of a vehicle if the container is not in the passenger’s possession and is not located in a locked glove compartment, locked trunk, or other locked non passenger area of the vehicle.
• An open container shall be considered to be in the possession of a passenger of a vehicle if the container is in the physical control of the passenger.

What are the Penalties For Opener Container Violations in Florida?

The standard State of Florida penalties for being charged with open container violation are as follows:

• Any operator of a vehicle who violates this section is guilty of a noncriminal moving traffic violation. A passenger of a vehicle who violates this section is also guilty of a nonmoving traffic violation.
• Any person who is charged with a noncriminal infraction must be cited for that infraction and must appear before an official. If the person cited fails to appear within 30 days after the date of the citation issuance, he or she must pay the civil penalty and delinquent fee or enter into a payment plan to pay the civil penalty and delinquent fee.
• Importantly, if an individual pays the civil infraction, he or she will be considered to have admitted the infraction and will have waived his or her right to a hearing on the issue of commission of the infraction.
• In Florida, local municipalities and city lawmakers are allowed to increase the severity of open container penalties as it desires. In Melbourne

Useful Definitions under Florida Statute § 316.1936

In order to full understand when an individual has violated Florida Statute § 316.1936, the reader should understand the specific definition of the key terms of the statute.

Open Container: is defined as any container of alcoholic beverage which is immediately capable of being consumed from, or the seal of which has been broken. A bottle of wine that has been resealed and is transported pursuant to Section 564.09 is not an open container for the purposes of this Statute.

Road: is defined as a way open to travel by the public, including, but not limited to, a street, highway, or alley. The term also includes associated sidewalks, the roadbed, the right-of-way, and all drains, culverts, sluices, water storage areas, ditches, slopes, embankments, retaining walls, bridges, tunnels, and viaducts necessary for the maintenance of travel and all ferries used in connection.

Is Open Container Always Illegal in Florida?

One of the most frequently asked questions regarding open container laws in Florida deals with open alcoholic containers on game days. Sports are huge spectacle events in Florida and patrons often have a beer or two while watching the game.

Sports Events / Game DAys

Whether a person can have an open container on game day generally depends on that facility’s policy on alcoholic beverages. The University of Florida’s “Rules for Tailgating at the University of Florida Football Game Days, for example, state that “[o]pen containers of alcohol must be kept within the immediate tailgating area and are not permitted on public streets, sidewalks, and thoroughfares.”

Some establishments waive open container laws for a specified period of time. At the University of Central Florida (UCF), open container ordinances are not enforced or applicable during certain hours before a home football game and are only waived on UCF’s Main Campus.

Other Exceptions

In addition, open container laws do not apply to every situation. Florida Statute § 316.1936 does not apply in the following situations:

• A passenger of a vehicle in which the driver is operating the vehicle pursuant to a contract to provide transportation for passengers and such driver holds a valid commercial driver’s license with a valid passenger endorsement.
• A passenger of a bus in which the driver holds a valid commercial driver’s licenses with a valid passenger endorsement.
• A passenger of a self-contained motor home, which is in excess of 21 feet in length.

Additional Resources

Florida Open Container Statute — Visit Online Sunshine, the official website of the Florida Legislature for the full statutory language associated with Florida open container law under Fla. Stat. § 316.1936.

Protecting Clients Throughout Brevard County, FL

If you or someone you know has been charged with a noncriminal moving open container violation in Melbourne, Florida, contact an experienced open container defense attorney. Law Offices of Bryan J. McCarthy has handled multiple types of driving offenses throughout Florida courtrooms specifically in Melbourne, Florida.

We have fought to protect the rights of clients in Satellite Beach, Merritt Island, Titusville, Viera, Cape Canaveral, Cocoa, Cocoa Beach, Indialantic, Indian Harbour Beach, Melbourne Beach, West Melbourne, Palm Bay, or Rockledge as well.

This article was last updated on Wednesday, August 14, 2019.