DWI With an Open Container in Austin: What the Six-Day Minimum Really Means

An open container turns a first-offense DWI into a case with a higher floor. Texas Penal Code Section 49.04(c) raises the minimum term of confinement from 72 hours to six days when the State shows that the driver had an open container of alcohol in the driver’s immediate possession at the time of the offense. The ceiling does not move, and the container is something the State has to prove, just like intoxication. A DWI lawyer in Austin starts by finding out how the container was found, where it was, whose it was and what the video shows, because those facts are often less clear than the police report makes them sound.

This guide explains how an open container comes into a DWI case, the two different rules that share a name, what the statute does and does not define, why the location of the container matters, what the enhancement changes and what it leaves alone, how probation and deferred adjudication fit, how the allegation is tested, and what to do first. We also correct several statements about this charge that appear on other websites and do not match the statutes.

How an Open Container Enters a DWI Case

Nobody is charged with an open container because of a hunch. The allegation comes from something an officer saw, found or was told, and each source can be examined:

• Plain view during the stop. An officer who sees a can or bottle through a window may point to it as the reason to investigate further. What the officer could actually see, from where and in what light, is a fair question.
• A search after the arrest. Containers are often found when the car is searched after the driver is taken into custody. Whether that search was lawful, and on what ground, can decide whether the container is admissible at all.
• An inventory before a tow. A vehicle that is impounded is typically inventoried, and a container listed on a property sheet may be described differently from what is on the video.
• Statements. A comment at the roadside about “a drink in the car” can become the basis for the allegation, so the exact words and the setting matter.
• Photos and video. Body camera and dash camera recordings, photographs of the interior and the property receipt are the best evidence of whether the item was open, where it sat and who could reach it.

Two Rules With Similar Names

The phrase “open container” refers to two different provisions, and mixing them up is one of the most common mistakes on other websites:

• The DWI enhancement, Section 49.04(c). It applies only to a DWI. If it is shown on the trial that the person operating the 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. It adds no second count. It raises the floor.
• The separate offense, Section 49.031. This one is a Class C misdemeanor punished only by a fine of up to $500 (Section 12.23). It covers knowingly having an open container in the passenger area of a vehicle on a public highway, and the vehicle can be moving, stopped or parked. Several containers in the same episode make one offense. Officers can write a citation with a notice to appear rather than book the person. Passengers in a bus, taxicab or limousine, and in the living quarters of a motor home, are excepted.

A driver can face both, or only one. If you received a separate ticket for the container, tell your lawyer, because it can be part of the negotiation.

What the Statute Does and Does Not Define

Section 49.04(c) uses the words “open container” and “immediate possession” without defining either one. Section 49.031 does define terms, for its own offense:

• Open container. Any bottle, can or similar receptacle with some alcoholic beverage in it that is open, was opened, has a broken seal or has been partly emptied.
• Passenger area. The part of the vehicle designed for seating the operator and passengers. It does not include a locked glove compartment or similar locked storage, the trunk, or the area behind the last upright seat when the vehicle has no trunk.

Whether those definitions govern the DWI enhancement, and how “immediate possession” differs from “passenger area,” are questions we raise in each case. They matter because the State’s evidence often shows only that a container was somewhere in the car.

Why Location and Possession Decide So Many Cases

• Cup holder, console or driver’s floorboard. Close to the driver and inside the passenger area. These are the hardest facts to argue around, though openness and ownership are still open questions.
• Back seat or rear floorboard. Inside the passenger area, but a driver’s “immediate possession” of something behind the seat is much easier to dispute.
• In a passenger’s hand or at a passenger’s feet. A container that belongs to someone else, and that the driver did not touch, is a weaker basis for the enhancement.
• Unlocked glove box. Not covered by the locked-compartment exclusion, so the State may argue it is part of the passenger area. Whether that is right is a point we contest.
• Locked glove box or other locked storage. Excluded from the passenger area under Section 49.031.
• Trunk. Excluded from the passenger area.
• Behind the last upright seat. Excluded only when the vehicle has no trunk, so a pickup or a hatchback can present a different question from a sedan.
• Not what the officer says it is. A sealed can, a closed bottle, an empty one or one holding a non-alcoholic drink does not fit the definition of an open container holding alcohol.

What the Enhancement Changes and What It Does Not

• The minimum rises. The floor goes from 72 hours to six days (Section 49.04(b) and (c)).
• The top of the range does not move. Class B means no more than 180 days and no more than a $2,000 fine (Section 12.22).
• Subsection (d) is a different trigger. If the analysis reached 0.15 or higher, the charge becomes a Class A misdemeanor carrying up to a year and $4,000 (Sections 49.04(d) and 12.21). When the State alleges both (c) and (d), we work out how they fit together before discussing any plea.
• Prior convictions change the grade. With one prior, the new DWI is a Class A misdemeanor with a 30-day minimum, and with two it is a third-degree felony (Section 49.09). Our page on second-offense DWI in Austin explains them.
• Your license faces the same exposure either way. Transportation Code Section 521.344(a) allows a suspension of 90 days to one year after a Section 49.04 conviction, container or not.
• The container does not change the baseline options. Our page on first-offense DWI in Austin explains the penalties, probation conditions and deferred adjudication rules that apply to every Section 49.04 case.

Probation, Deferred Adjudication and the Six Days

The number of days in a statute is not always the number of days a person serves, and the law on this point rewards careful reading:

• Probation is not ruled out. A judge may place a person convicted of a misdemeanor on community supervision for up to two years (Article 42A.053). Article 42A.401 lists the jail terms a judge must require when granting probation in intoxication cases, and it does not mention an open container.
• How the six-day floor fits with probation is a question for the court. The statute states a minimum term of confinement, and the probation article says nothing specific about it. We check the current statutes, the appellate decisions and the practice of the court assigned to your case before advising you on a plea.
• Deferred adjudication is not barred by a container. Article 42A.102(b) excludes DWI cases for a commercial license holder, for a test of 0.15 or more and for offenses enhanced under Section 49.09. An open container is not on the list, so eligibility depends on the rest of the facts and the judge.
• Read the fine print on deferred adjudication. The judge must order an interlock unless an evaluation supports a waiver, a later DWI treats it as a prior, and the nondisclosure statutes for deferred adjudication leave DWI out.
• Education course. Article 42A.403 has the judge require a DWI education program finished before the 181st day of probation, unless the court finds good cause to waive it or allow more time.

Probation can be revoked for a missed report, a failed alcohol test or a new arrest. See our page on probation violations for DWI.

How We Test the Allegation

• The stop. Without a lawful reason for the stop, the container and the evidence of impairment can both be thrown out.
• The search. We ask how the container was found, what the officer could see before any search began and whether the search rested on consent, an arrest, an inventory or a warrant.
• The container itself. We request the report, photographs, video, property receipt and any lab or evidence log to see whether it was open, whether it held alcohol and how much.
• Possession. We examine who owned the container, who could reach it, who else was in the vehicle and what the driver knew.
• The DWI. Because the enhancement depends on a DWI, a successful challenge to the stop, the arrest, the tests or the proof of intoxication removes it.
• The paperwork. The charging document, the report and the citation should describe the same container in the same place.
• Negotiation. A prosecutor can keep or drop the allegation in a plea agreement. Because it moves the minimum, it is a real bargaining point, but no one can promise that it will be dropped.

The License Case Runs Separately

The container has no effect on the administrative license case, which has its own clock. Following a failed or refused test, the written request for a hearing has to reach DPS by the 15th day after you receive the notice (Transportation Code Sections 524.031 and 724.041), and DPS denies a late one. Our guides to the first 15 days after arrest and the ALR hearing process in Travis County explain the steps. If you decide to refuse a test, our page on refusing a breath test in Austin explains what that sets in motion, and our page on license reinstatement and occupational licenses covers driving in the meantime.

Passengers and Other Situations

• If you were riding along. Only the person operating the vehicle faces the DWI enhancement. A passenger in a private car can still receive a Section 49.031 citation for a container in the passenger area, subject to the exceptions above.
• If the driver is charged and you own the car. Ownership is not the test under either rule, and the facts about who possessed the container still matter.
• If a ticket and a DWI came from the same stop. The two cases are filed separately and can be handled together, but the fine-only ticket should not be paid or pleaded before a lawyer has reviewed how it affects the DWI.
• If the vehicle was a taxi or limousine. The Section 49.031 exception covers a passenger in a vehicle used primarily to carry people for pay. It does not protect the person driving.

What This Means for Your Travis County Case

1. Find the DPS notice of suspension and mark the 15th day after you received it. Your court date does not move that deadline.
2. Make notes on the container: where it sat, whether it was open, who owned it, who else was in the car and what the officer said. Show them only to your lawyer.
3. Do not talk about the container with the police, a passenger or anyone else, and do not ask a passenger to take responsibility for it.
4. Keep any citation for the container, along with the tow, impound and property receipts.
5. Tell us about nearby businesses with cameras, because many systems record over footage within days.
6. Meet every bond condition and attend each court setting. Do not drive on a suspended license.
7. Hold off on any plea until your lawyer has seen the video and photographs and has explained how the six-day minimum applies to your case.

More About DWI Charges in Austin

These pages cover related questions that come up after a DWI arrest.

• misdemeanor charges in Austin: how the misdemeanor courts work.
• misdemeanor versus felony DWI: what decides the grade of a DWI.
• common questions after a DWI arrest: short answers on bail, tests and what to do first.

Why Austin Clients Choose Barton & Associates for Open Container DWI Defense

Barton & Associates has tried Texas cases since 2001. Our Austin criminal defense team includes Gary J. Barton, who is Board Certified in Criminal Law by the Texas Board of Legal Specialization, is a former capital murder prosecutor and has tried more than 100 jury trials, and Jim Erickson, a senior trial attorney in the Austin office who has handled criminal defense since 1985 and has more than 250 jury verdicts in more than sixty Texas counties. This kind of allegation depends on physical details that fade fast, such as where an item sat, who handled it and what the officer observed. We build from the records and the recordings, take on the license case along with the criminal case and prepare every file as if it may go before a jury.

Be careful with any lawyer who predicts the outcome of an open container case. We can give you a straight read on the strength of the allegation, the risk in each option and our advice, which sometimes is to take a plea. The first consultation is free and confidential. Our Austin office is at 316 W. 12th Street, Suite 400, Austin, Texas 78701, and we meet with clients there by appointment. You can get directions to our office before your visit. For the first meeting, bring what you can of the following, and call even if you cannot find everything.

• Your arrest papers, any ticket for the container and your next court date
• The suspension notice from DPS and the day it reached you
• What you recall about the container: its location, its condition, its owner and the other people in the car
• Whatever you have on a breath test, blood draw or refusal
• Tow, impound or property receipts
• The names of passengers and other witnesses
• Your license number, and whether any of your licenses is a commercial one
• A calendar of your key dates and deadlines

Frequently Asked Questions About DWI With an Open Container in Austin

What additional consequence does an open container add to a DWI in Texas?

It raises the floor on jail time. When the State shows at trial that the driver had an open container of alcohol in immediate possession, Penal Code Section 49.04(c) sets a minimum term of confinement of six days for the Class B misdemeanor, up from 72 hours. The ceiling stays at 180 days and a $2,000 fine.

Does an open container mean a second charge on top of the DWI?

The enhancement does not. Section 49.04(c) adds no second count. It raises the minimum if the container is proved along with the DWI. A different offense, possession of an open container under Section 49.031, is a fine-only Class C misdemeanor that an officer can cite with or without a DWI.

What counts as an open container?

For the separate offense, Section 49.031 defines it as a bottle, can or other receptacle holding any amount of alcoholic beverage that is open, has been opened, has a broken seal or has partly removed contents. Section 49.04(c) does not define the term, so we examine whether and how that definition applies to the DWI enhancement.

Do I have to serve six days in jail?

Not necessarily. The statute states a minimum term of confinement, but probation is still possible in many first-offense cases, and Article 42A.401 does not list an open container among the jail terms required for probation. How the six-day floor interacts with a probated sentence depends on the court and the plea, so we confirm it before advising you.

Is a container in the trunk or glove compartment an open container?

Section 49.031 excludes the trunk, a locked glove compartment or similar locked storage, and the area behind the last upright seat in a vehicle with no trunk. An unlocked glove box is not excluded. Whether a container in a closed space counts toward the DWI enhancement is a question we assess on the facts of the search.

What if the container belonged to my passenger?

It can matter a great deal. The enhancement turns on whether the container was in the driver’s immediate possession, and a bottle that belonged to a passenger or sat out of the driver’s reach is a weaker basis for it. Ownership alone is not the whole question, so do not discuss it with anyone but your lawyer.

Does a sealed or empty container count?

Generally not. The Section 49.031 definition requires a container holding any amount of alcoholic beverage that is open, has been opened, has a broken seal or is partly emptied. An unopened can, a container that held something else and a bottle that was empty do not fit it. We check the photos and video to see what was really there.

Will the prosecutor drop the open container allegation if I plead?

It happens, but it is not automatic. The allegation moves the minimum, so a prosecutor may trade it away depending on the evidence and the rest of the file. No lawyer can promise that result. Review any offer with a lawyer before you accept it.

Does an open container rule out deferred adjudication?

No. The exclusions in Article 42A.102 cover commercial license holders, a test of 0.15 or more and offenses enhanced under Section 49.09, and an open container is not among them. The judge still decides whether to grant it. If granted, an interlock is required unless an evaluation supports a waiver, and the case counts as a prior for a later DWI.

Will an open container change what happens to my license?

Not directly. A Section 49.04 conviction carries a court-ordered suspension of 90 days to one year, container or no container. The DPS administrative case is separate, and its 15-day deadline for requesting a hearing is the same either way.

Can a passenger be charged for an open container?

Yes. A passenger in the passenger area of a private car can be cited under Section 49.031, a Class C misdemeanor with a fine of up to $500. The exceptions cover passengers in a bus, taxicab or limousine and in the living quarters of a motor home. The DWI enhancement itself applies to the person operating the vehicle.

What evidence does the State use to prove an open container?

The usual sources are the officer’s testimony, photos, body and dash camera recordings and the inventory or property sheet. The statute requires the container to be shown at trial. Vague evidence about its location, its condition or who could reach it gives the defense room to challenge the allegation.

What should I bring to the first meeting about this charge?

Gather your arrest papers, any ticket for the container, the DPS suspension notice (with the date it reached you), bond terms and next court date. Add your notes about the container and who rode with you, tow or property receipts, and any breath or blood forms. Call even if you cannot find everything.

Talk With an Austin Open Container DWI Attorney

What you should do next turns on where the container was, how it was found and what else the State has. Talk with an Austin criminal defense attorney at Barton & Associates about the charge, the video and our advice before you make a statement, sign a paper or accept a plea.

Call our Austin office at 512-THE-FIRM (843-3476) or complete the online Free Consultation form to schedule a confidential meeting about the charge. Consultations at the office are by appointment only. The office is at 316 W. 12th Street, Suite 400, Austin, Texas 78701.

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)