A first-offense DWI in Texas is a Class B misdemeanor with a 72-hour minimum jail term. Add an open container of alcohol in the passenger area and the minimum doubles to six days. Former Vehicular Crimes Team prosecutors Brian Foley and Luis Baez explain the enhancement in this video.
The statute
Penal Code § 49.04(c) provides that if it is shown at trial that the person had an open container of alcohol in their immediate possession at the time of the offense, the DWI is a Class B misdemeanor with a minimum term of confinement of six days. The offense level does not change; the floor does.
What counts as an "open container"
Penal Code § 49.031 defines an open container as a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, has been opened, has a broken seal, or has had its contents partially removed. The "passenger area" is the area designed for the seating of the driver and passengers — it excludes a locked glove compartment, the trunk, and the area behind the last upright seat in a vehicle with no trunk. A half-finished bottle of wine in the trunk is not an open container offense; the same bottle on the back seat is.
"Immediate possession"
The enhancement requires the container to be in the driver's immediate possession. A passenger's beer, a can that rolled under a rear seat days ago, or a container the driver had no knowledge of gives the defense room to argue the enhancement does not apply. The State must prove the enhancement just like every other element.
Fighting the underlying DWI
The open container enhancement only matters if the State can prove the DWI itself. Every defense available in a standard case — an unlawful stop, flawed field sobriety tests, a challenged breath or blood result — is available here. And the same 15-day deadline to request an ALR hearing and protect your driver's license applies.
Read more on our DWI open container page, or call or text (713) 703-1718 for a free consultation with our Houston DWI attorneys.