A DWI with an open container in Texas doubles the minimum jail time from 72 hours to six days. Under Texas Penal Code § 49.04 and § 49.031, if police find an open alcoholic beverage in your vehicle during a DWI arrest, you face enhanced penalties even for a first offense. Both charges remain Class B misdemeanors, but the open container triggers mandatory additional jail time that cannot be waived.
What Qualifies as an “Open Container” Under Texas Law?
Texas Penal Code § 49.031 defines an open container as any bottle, can, or receptacle containing any amount of alcohol and located in the passenger area of a motor vehicle. The container must be open, have been previously opened, have a broken seal, or have contents partially removed.
The passenger area includes every space designed for seating, plus any area within the driver’s reach. This covers the front and back seats, center console, floor areas, and unlocked glove compartments. The law applies whether the vehicle is moving or parked on a public road.
Penalties for DWI with Open Container in Texas
A first-time DWI with open container carries a minimum of six days in county jail. Without the open container, first-time DWI carries only a 72-hour minimum. This distinction matters because judges cannot reduce the minimum below six days when an open container is involved.
Additional penalties include fines up to $2,000, driver’s license suspension for 90 days to one year, mandatory alcohol education through the Texas DWI Intervention Program, possible community service hours, and an ignition interlock device requirement. Your auto insurance rates will also increase significantly, and the conviction stays on your criminal record permanently.
| Charge | Classification | Minimum Jail | Maximum Fine |
|---|---|---|---|
| Standard First DWI | Class B Misdemeanor | 72 hours | $2,000 |
| First DWI with Open Container | Class B Misdemeanor | 6 days | $2,000 |
| Open Container Only (no DWI) | Class C Misdemeanor | None | $500 |
Where Can You Legally Store an Open Container?
Texas law permits open containers in specific locations within your vehicle. The trunk is always legal. For SUVs, hatchbacks, and vehicles without a traditional trunk, the area behind the last upright row of seats qualifies as a trunk equivalent under the statute.
The living quarters of a motorhome or RV are also exempt. Passengers can possess open containers in the sleeping and living areas, though the driver’s compartment must remain free of alcohol. Commercial vehicles with physical barriers between driver and passenger sections (limousines, charter buses, taxis) allow open containers in the passenger area only.
A locked glove compartment may qualify as a legal storage location in some circumstances, but relying on this exception carries risk. The safer choice is always the trunk or rear cargo area.
Can You Get Charged with Open Container Without a DWI?
Yes. Texas Transportation Code § 49.031 makes possessing an open container in a vehicle a Class C misdemeanor punishable by a fine up to $500. Police do not need to prove intoxication. Simply having an accessible open container while operating or riding in a vehicle on a public roadway violates the law.
Conversely, prosecutors can add open container charges to any DWI arrest where officers discover alcohol in the passenger compartment. This stacks the mandatory minimum jail time even when the container belongs to a passenger.
How Fort Worth and Dallas Courts Handle These Cases
Tarrant County and Dallas County prosecutors take DWI open container cases seriously. In Fort Worth, first-time offenders rarely receive the minimum sentence without strong legal representation. Dallas County courts often require additional alcohol assessment and treatment compliance before considering reduced penalties.
A conviction affects your driving privileges across Texas. The Texas Department of Public Safety will suspend your license, and reinstatement requires payment of fees, completion of the DWI education program, and potentially an SR-22 insurance filing for three years.
Defense Strategies for DWI Open Container Charges
Challenging the traffic stop itself is often the strongest defense. If officers lacked reasonable suspicion to pull you over, all evidence discovered afterward may be suppressed. Similarly, field sobriety tests and breathalyzer results can be contested based on improper administration or equipment calibration issues.
The container’s location matters significantly. If the container was in the trunk or a truly locked compartment, the open container enhancement may not apply. Ownership disputes also arise when multiple occupants are in the vehicle and the container clearly belonged to a passenger.
Blood alcohol level evidence requires careful scrutiny. Breath tests have known error margins. Blood tests must follow strict chain of custody procedures. Any deviation from protocol creates grounds for challenge.
Why Our Firm Handles These Cases Differently
Varghese Summersett has defended thousands of DWI cases across Texas, including hundreds at trial. Our attorneys hold Board Certification in Criminal Law from the Texas Board of Legal Specialization, a distinction earned by less than 2% of Texas attorneys. We maintain offices in Fort Worth, Dallas, Houston, and Southlake to serve clients throughout the state.
Our 1,100+ five-star reviews reflect outcomes achieved through aggressive defense preparation and courtroom experience. We understand the science behind breath and blood testing, and we know how to expose weaknesses in the prosecution’s case.
Frequently Asked Questions
Does an empty bottle count as an open container in Texas?
Yes. Under Texas Penal Code § 49.031, any container that has been opened, has a broken seal, or has contents partially removed qualifies. An empty bottle that previously held alcohol meets this definition.
Can a passenger be charged with open container?
Both drivers and passengers can receive open container citations. However, only the driver faces the enhanced DWI penalties. Passengers may receive the standalone Class C misdemeanor charge with a fine up to $500.
What if the open container was in my car but I wasn’t drinking?
For the standalone open container offense, your sobriety is irrelevant. Possession of an accessible open container in the passenger area violates the law regardless of who was drinking or whether anyone was intoxicated.
How long does a DWI with open container stay on my record?
DWI convictions in Texas remain on your criminal record permanently. They cannot be expunged. Some first-time offenders may qualify for an order of nondisclosure after completing deferred adjudication, but this requires meeting strict eligibility requirements.
Can I get probation instead of jail time for DWI with open container?
Probation is possible, but the six-day minimum jail requirement must still be served. Judges may allow this time to be served as a condition of probation, sometimes on weekends or through work release programs in certain counties.
Contact a Texas DWI Defense Attorney Today
A DWI with open container charge demands immediate attention. The enhanced penalties and permanent record consequences require experienced defense counsel who understands Texas DWI law and local court procedures.
Varghese Summersett offers free consultations to discuss your case. Call (817) 203-2220 now or contact us online. Our team is available 24/7 to answer your questions and begin building your defense.
