An Open Can, An Added Charge: DWI With Open Container Defense in Austin, Texas

A traffic stop. The officer shines a flashlight into your car. On the passenger seat, an open beer can. What might have been a standard DWI now carries an additional charge—one that can add jail time, extend your license suspension, and make a first offense feel like a second. In Texas, an open container charge is not just an add-on; it is a separate offense that carries its own penalties and, more importantly, signals to prosecutors and judges that the case is more serious.

At Barton & Associates, Attorneys at Law, we defend clients across Central Texas against DWI charges that involve open containers. Whether you were pulled over on South Congress after a night out, stopped near the Domain, or driving through the Hill Country, we understand how an open container allegation can change the dynamics of your case. Our attorneys have spent decades in Travis County courtrooms and beyond, building a reputation for challenging the evidence and protecting our clients’ rights.

We know that an open container can be anything from a half-empty beer can to a wine bottle in the back seat. We know that the circumstances matter—who was in the car, where the container was found, whether it was accessible to the driver. We know how to challenge the officer’s observations, the search of your vehicle, and the connection between the container and your DWI charge.

If you are facing a DWI with an open container, the stakes are higher. Let us help you navigate the added complexity.

Understanding DWI With Open Container in Texas

In Texas, it is illegal to possess an open container of alcohol in a motor vehicle. When a DWI charge also involves an open container, the penalties increase—and the message to the court is that the offense is more serious.

The Open Container Law:

Under Texas law, it is a Class C misdemeanor to possess an open container of alcohol in the passenger area of a motor vehicle. “Open container” means any bottle, can, or other receptacle that contains alcohol and has been opened, had its seal broken, or has had its contents partially removed.

The Enhanced DWI Penalties:

When a DWI involves an open container:

• First DWI: The minimum term of confinement increases from none to 6 days (if the DWI is your first)

• Second DWI: The minimum term of confinement increases from 3 days to 6 days

• License Suspension: Longer suspension periods may apply

The Separate Open Container Charge:

• Class C Misdemeanor: Fine of up to $500

• No jail time for the open container alone, but it can affect the DWI penalty

For drivers across the Austin metro area, an open container turns a standard DWI into a more serious matter.

What Is the Penalty for DWI With an Open Container in Texas?

A DWI with an open container carries enhanced penalties beyond a standard DWI.

First DWI With Open Container:

• Class B Misdemeanor: Up to 180 days in jail

• Mandatory Minimum: 6 days in jail (compared to none for a standard first DWI)

• Fine: Up to $2,000

• License Suspension: Up to 1 year

Second DWI With Open Container:

• Class A Misdemeanor: Up to 1 year in jail

• Mandatory Minimum: 6 days in jail (compared to 3 days for a standard second DWI)

• Fine: Up to $4,000

• License Suspension: Up to 2 years

The Separate Open Container Charge:

• Class C Misdemeanor: Fine of up to $500

• No jail time, but adds to your record

For residents across Central Texas, an open container can add days in jail to a DWI sentence.

How to Defend a DWI With Open Container Charge

Defending against a DWI with an open container requires a dual strategy: challenging the DWI itself and challenging the open container allegation.

Defense 1: The Container Was Not “Open”

The State must prove the container was open. Your attorney can challenge:

• Whether the seal was actually broken

• Whether the container had been opened or just appeared to be

• Whether the container was empty or held non-alcoholic liquid

Defense 2: The Container Was Not in the Passenger Area

The open container law applies only to the passenger area of the vehicle. The passenger area does not include:

• The trunk

• A locked glove compartment

• A locked toolbox

• The area behind the last upright seat (in SUVs or trucks)

Defense 3: The Container Did Not Belong to You

The open container statute does not require that the container belong to the driver. However, if the container was in a location accessible to passengers, the driver may not have known about it.

Defense 4: Unlawful Search

If the officer discovered the container through an illegal search, the evidence may be suppressed. Common issues:

• No probable cause for the stop

• Search without consent or warrant

• Search exceeding the scope of consent

Defense 5: Challenge the Underlying DWI

If the DWI charge is dismissed or reduced, the open container enhancement falls away. Your attorney can challenge:

• The traffic stop

• The field sobriety tests

• The breathalyzer or blood test

• The officer’s observations

Defense 6: The Container Was Not Accessible

If the container was in the back seat, in a bag, or otherwise not within the driver’s reach, you may have a defense.

For those in the Austin area, a strong defense can keep an open container from turning a DWI into a mandatory jail sentence.

The Mandatory Minimum: 6 Days in Jail

For a first DWI with an open container, the mandatory minimum jail sentence is 6 days. This is a significant increase from a standard first DWI, which has no mandatory jail time.

Why the Mandatory Minimum Matters:

• You cannot simply pay a fine and move on

• Even with probation, you may be required to serve the 6 days

• The mandatory minimum applies regardless of your BAC or other factors

How to Avoid the Mandatory Minimum:

• Get the DWI charge reduced or dismissed

• Challenge the open container allegation

• Negotiate a plea that drops the open container enhancement

For drivers across Central Texas, avoiding the mandatory minimum is often the primary goal.

Where Was the Container? The Passenger Area Rule

The open container law applies only to the passenger area of the vehicle. Understanding what counts as the passenger area is essential to your defense.

What Is the Passenger Area:

• The area where the driver and passengers sit

• Including the front seat, back seat, and floorboards

What Is NOT the Passenger Area:

• The trunk

• A locked glove compartment

• A locked toolbox

• The area behind the last upright seat (in SUVs, vans, and trucks)

If the Container Was in the Trunk:

If the open container was in the trunk, the open container charge does not apply—even if you were drinking before driving.

For residents of the Austin metro area, the location of the container can be the key to your defense.

Open Container and the Traffic Stop

Open containers are often discovered during traffic stops. Understanding your rights during a traffic stop can protect you.

Your Rights:

• You have the right to remain silent

• You have the right to refuse consent to a search

• The officer may not extend the stop beyond the time needed to address the traffic violation

What to Do:

• Be polite and respectful

• Provide your driver’s license and insurance if requested

• Do not consent to a search

• If the officer asks to search, say clearly: “I do not consent to a search”

If the Officer Sees an Open Container:

If the container is in plain view, the officer may seize it without a warrant. But if the officer had to search to find it, the search may be illegal.

For those in Central Texas, knowing your rights during a traffic stop can prevent a routine stop from becoming a criminal case.

Open Container and ALR Hearings

An open container allegation does not directly affect your ALR (Administrative License Revocation) hearing, but the underlying DWI does. The same deadlines apply.

The 15-Day Deadline:

You have 15 days from the date of your arrest to request an ALR hearing. Miss the deadline, and your license is suspended automatically.

What the ALR Hearing Covers:

• Did the officer have reasonable suspicion to stop you?

• Did the officer have probable cause to arrest you?

• Was your BAC 0.08 or higher?

Why It Matters:

• You can keep your license if you win

• Your attorney can cross-examine the officer under oath

• The testimony can be used in your criminal case

For drivers across the Austin area, requesting an ALR hearing is critical to protecting your license.

Deferred Adjudication and Open Container Cases

Deferred adjudication is often available for first-time DWI offenders, but an open container can complicate the picture.

How Deferred Adjudication Works:

• You plead guilty or no contest

• The court defers a finding of guilt

• You complete probation

• The case is dismissed, and no conviction appears on your record

Open Container and Deferred Adjudication:

• Some counties may still offer deferred adjudication for DWI with an open container

• Others may treat the open container as an aggravating factor that makes deferred adjudication less likely

For those in the Austin metro area, the availability of deferred adjudication depends on the county and the specifics of your case.

Frequently Asked Questions About DWI With Open Container in Austin, Texas

When clients come to our office—whether from the urban core of Austin, the suburbs to the north and south, or the Hill Country communities—they often have questions about open container charges. Here are the answers to the most common inquiries we receive.

What is considered an open container in Texas?

An open container is any bottle, can, or other receptacle that contains alcohol and has been opened, had its seal broken, or has had its contents partially removed.

What is the penalty for a first DWI with an open container?

A first DWI with an open container carries a mandatory minimum of 6 days in jail, up to 180 days total, a fine of up to $2,000, and license suspension.

Can I get deferred adjudication for a DWI with an open container?

In some counties, deferred adjudication may still be available. The open container allegation can affect the prosecutor’s willingness to offer it.

What if the open container was in the trunk?

If the open container was in the trunk, the open container charge does not apply. The passenger area does not include the trunk.

What if the container was not mine?

The open container law does not require that the container belong to you. However, if the container was in a location accessible to passengers, you may have a defense.

Should I consent to a search if I have an open container in the car?

No. You have the right to refuse consent to a search. Politely decline. If the officer searches anyway, your attorney can challenge the legality of the search.

Do I need an attorney for a DWI with an open container?

Yes. An open container adds mandatory jail time and enhances penalties. An experienced attorney can challenge the container evidence and fight to keep the enhancement out of your case.

Why Barton & Associates for DWI With Open Container Defense in Austin

A DWI is serious. A DWI with an open container is more serious. Our attorneys have spent decades in courtrooms across Central Texas, handling cases where an open container turned a standard DWI into a mandatory jail sentence. We know the local prosecutors, the judges, and the arguments that work.

We know that an open container can be challenged—on the facts, on the law, and on the search that found it. We will fight to keep that enhancement out of your case and to protect your rights.

Take the First Step Toward Protecting Your Freedom

If you are facing a DWI with an open container, the mandatory minimum of 6 days in jail is on the table. Do not wait. The sooner you have an experienced attorney on your side, the better your chances of avoiding that mandatory sentence and protecting your record.

Call our Austin office today at 512-THE-FIRM (843-3476) to speak with an experienced DWI defense attorney about your case. You can also complete the online Free Consultation form on our website to schedule a confidential meeting. Please note, on-site consultations are by appointment only. We look forward to helping you protect your rights and your future.

Main Category: Criminal Defense Austin
Practice Area Category: DWI & Intoxication
Barton & Associates, Attorneys at Law
316 W 12th St Suite 400, Austin, TX 78701
Office: 512-THE-FIRM (843-3476)