Last Updated: 12/28/18 | Reviewed By: Adam H. Rosenblum Esq.
Throughout New York State, it is illegal to drink from or having an open container of alcohol in public. A similar statewide provision applies to drivers and passengers in vehicles on public roadways. Under VTL 1227-1, anyone caught with an open container of alcohol in a car can be ticketed and face numerous consequences, including jail time.
Fine: Drivers convicted of violating NY’s open container law face a maximum fine of $150 for a first offense. A second offense in 18 months carries a fine of up to $300 while a third offense can mean a fine of up to $450.
Surcharge: New York State adds a mandatory surcharge of $88 or $93 to every traffic violation. This is addition to the fine and any other fees.
Auto insurance increase: Any traffic ticket has the potential to impact a driver’s auto insurance rates. There are no studies specific to the insurance impact of New York’s open container law. However, it is common for tickets to cause anywhere between a 5% to 20% increase, depending on the risks the insurance company associates with the ticket.
Crime victim assistance fee: New York also requires anyone convicted of VTL 1227-1 to pay a crime victim assistance fee (P.L.§60.35(1)(a)(i)-iii)) of $20.
Points: There are 0 points assessed for violating VTL 1227-1.
Jail time: While no points are assessed for having open containers of alcohol, it is possible for a judge to impose a jail sentence of up to 15 days for violating the statute.
Sobriety check: In addition to getting a ticket, having an open container of alcohol is grounds for police to conduct a sobriety check to determine if the driver has been drinking. While a fully sober individual has nothing to worry about, blowing even a 0.02 on a breathalyzer can result in a charge of driving while ability impaired (DWAI).
Almost all throughout the United States, open container laws exist to prohibit drinking alcoholic beverages in public places such as public parks or streets and semi-private areas such as automobiles. Each open container law is enforced and regulated by each individual state, however the federal government pushed each to state to legislate on the issue by passing the Transportation Equity Act for the 21st Century (or TEA-21).
TEA-21 outlines the suggestions that each state should adopt with respect to open container laws and it is incentivized with federal grant money. States that adopt the guidelines are granted federal funds for state roadways. As such, 39 states have adopted the terms of the Act and implement their own open container laws.
New York is one of the 39 states that have its own open container law. In New York, the open container laws prohibit consuming or possessing open alcoholic containers in public areas and any open alcohol containers in the passenger area or inside an unlocked glove box or armrest where it can easily be reached by anyone sitting inside the vehicle. The law includes all alcoholic beverages within any type of container. It should be noted that the law applies whether the vehicle is actually being driven or is parked outside.
NYC Admin Code § 10-125 states that possession of an open container containing an alcoholic beverage by any person shall create a rebuttable presumption that such person did intend to consume the contents thereof in violation of this section. Think of it this way, if a police officer finds an open bottle either on a person in public or in his/her vehicle while he/she was driving, the officer most likely will conclude that the driver was drinking and further investigate the matter. As such, open container violations in New York are considered by many as a gateway offense that can lead to other violations or crimes. This means if driver has consumed any of the alcohol at all, it is possible to be charged with DWI—even if the vehicle was not in motion!
The exact defense will depend heavily on the circumstances of each case. Aside from not carrying open containers of alcohol in the passenger area of the car, the best thing to do is to say as little as possible when the officer issues the ticket. Any accidental admissions can be used to convict the accused in court.
If the containers are completely empty and dry, it is possible to argue that the driver did not violate the statute. However, even a person planning to take empty beer cans or bottles to be recycled shoIf the containers are completely empty and dry, it is possible to argue that the driver did not violate the statute. However, even a person planning to take empty beer cans or bottles to be recycled should keep them in the trunk to avoid any issues with police.
Limousine and bus companies can apply for permits to allow passengers to consume alcohol in the vehicle.
A person who buys alcohol from the store can have the container in the passenger area provided the seal has not been broken for consumption. Still, it is always safer to transport booze of any kind in the trunk to avoid having to explain things to the police.
There are two exceptions:
No. A driveway is considered a private space.
Yes. A store parking lot is considered public space. Even if the car is parked, having open containers of alcohol anywhere other than the trunk violates the statute.
Yes. The side of the road is considered public space.