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DWI First - Open Container

Brian Foley is a DWI lawyer and criminal defense attorney in Conroe, Texas representing people charged with DWI in Houston, Conroe, the Woodlands, and the surrounding area. A DWI first with an open container is very similar to a DWI first without an open container.  The charge is still a class B misdemeanor and most of the defenses and strategies to win the case are nearly identical to other DWI cases depending on if the officer collected breath or blood.

What is an "open container" 

In Texas an “open container” is defined by Texas Penal Code Section 49.031 as “a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.”

Under this definition a beer can which still has some beer left in it but has been tossed into the floorboard in the back of the vehicle would count as an “open container.”  Other things that would count as an open container.


  • Opened liquor bottles

  • Wine bottle with the cork previously removed and put back into the bottle

  • A sonic cup with a slushy and alcohol mixed together with or without a lid

  • Beer cans or bottles with a broken seal

Can you get in trouble for having old beer cans in the bed of your truck?

​Section 49.031 (b) makes it illegal to knowingly possess an open container in the passenger area of a vehicle.  So what about beer cans that have been left in the bed of a truck?  The passenger area of a motor vehicle means the area where the driver and passengers sit.  It doesn’t include the glove box, or a locked container that isn’t really accessible to the passengers or driver.  The term passenger area also does not include the trunk of a vehicle or the back part of an SUV if your vehicle doesn’t have a trunk.  This allows you to transport an opened bottle of wine back to your home from a friend’s house without violating the open container provision.  If you are not charged with a DWI but are only charged with Open Container under 49.031 then the offense is a Class C Misdemeanor and is one of only three offenses for which you CANNOT be arrested.  The other two offenses are speeding and texting while driving.  You may still be arrested for another offense if you violate the open container law and another law. 

Can I go to jail for a DWI First – Open Container?

Texas Penal Code Section 49.04 (a) and (b) list the punishments for a Driving While Intoxicated charge.  In Texas a first time DWI is punishable by a maximum of 180 days in jail and up to a $2,000 fine.  DWI is different from most other class B misdemeanor charges because it also carries a minimum jail time of 72 hours. 


Texas Penal Code Section 49.04 (c) increases the minimum jail time for a DWI from 72 hours to 6 days when there is an open container finding made by the Judge or Jury. 


The law actually states “If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days."

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