DWI With an Open Container in Corpus Christi: The Six-Day Minimum, What Counts as Open and How the State Proves It

A first DWI normally carries a 72-hour minimum. If a prosecutor can show that the driver also had an open container of alcohol in his or her immediate possession, Penal Code Section 49.04(c) raises that minimum to six days. Nothing else about the range moves, and the State has to prove the container just as it has to prove intoxication. A Corpus Christi DWI attorney starts with the practical questions: how was the container found, where was it sitting, who did it belong to and what does the video actually show? The answers are often murkier than the police report suggests.

Below you will find the difference between the two laws that both get called “open container,” the terms the statutes define and the ones they leave open, a walk through the places in a car where a container might be found, the question of whose container it is, what the enhancement changes, how probation and deferred adjudication fit, how the allegation is tested and what to do in the first days. Several widely repeated claims about this charge do not match the statutes, and we correct them along the way. One example is the idea that the six days are certain jail time that can never be probated.

Two Laws With the Same Name

Many websites run these together, and the difference matters for your charge and your exposure.

• The DWI enhancement, Section 49.04(c). It exists only inside a DWI prosecution. When the State proves the open container on trial, the offense stays a Class B misdemeanor but the minimum confinement becomes six days. There is no extra count. The statute simply raises the floor.
• The stand-alone offense, Section 49.031. It is a Class C misdemeanor with a fine of up to $500 (Section 12.23), and it needs no DWI at all. A person commits it by knowingly possessing an open container in the passenger area of a vehicle on a public highway, whether the vehicle is moving, stopped or parked. Several containers in one episode make a single offense, and the officer may write a citation with a notice to appear instead of taking the person to jail.

A driver may be charged with one or both, and a ticket for the container is its own case that can come up in negotiations, so mention it to your lawyer. Our post on summer DWI enforcement in Corpus Christi describes how often the stand-alone rule turns up around the beach and the bars.

Terms the Statutes Define and Terms They Do Not

Section 49.04(c) never defines “open container” or “immediate possession.” Section 49.031 gives definitions, but only for its own offense. Under that section, an open container is a bottle, can or other receptacle that holds any amount of an alcoholic beverage and that is open, has been opened, has a broken seal or has lost part of its contents. The passenger area is the part of the vehicle built for seating the driver and passengers, minus a locked glove compartment or similar locked storage, the trunk and, in a vehicle with no trunk, the space behind the last upright seat.

We therefore argue about two things in a DWI case: whether the Section 49.031 definitions apply to the enhancement at all, and how “immediate possession” differs from simply being somewhere inside the car. The State’s proof often shows no more than that something was in the vehicle, and that gap is where defenses start.

Where the Container Was Found

The same can looks very different depending on where it sat:

• Cup holder, console or driver’s side floor. This puts the container within the driver’s reach. It is the hardest position to explain away, although whether it was open and whose it was can still be contested.
• Back seat or rear floor. The container is in the passenger area, yet a driver’s possession of something behind the seat is much easier to question.
• With a passenger. A drink in someone else’s hand or at someone else’s feet, never touched by the driver, supports the enhancement only weakly.
• Unlocked glove box. The locked-storage exclusion does not cover it, so the State may call it part of the passenger area. We dispute that characterization.
• Locked glove box, trunk or behind the last seat of a trunkless vehicle. All three fall outside the passenger area under Section 49.031. The last one applies only to a vehicle that lacks a trunk, so a pickup or hatchback raises a different issue than a sedan.
• Not an open container at all. A sealed can, an unopened bottle, an empty one or a cup holding something without alcohol does not meet the definition.

Whose Container Is It?

Some websites say the driver answers for every container in the car, whoever owns it. The statutes do not go that far. The stand-alone offense requires knowing possession, and the enhancement turns on possession by the driver that is immediate. Who bought the drink, who held it, who could reach it and what you knew are questions of fact, and in many cases they are the heart of the defense.

The rules cut both ways. A passenger in a private car can be cited under Section 49.031 for an open container in the passenger area, even if the driver is sober. Riders in a bus, taxi or limousine, and people in the living quarters of a motor home, are excepted. Owning the car does not settle anything under either rule.

How the Allegation Reaches a File

An officer saw it, found it or was told about it. Each route can be examined.

• Spotted from outside the car. Where the officer stood, what was visible and the lighting all bear on whether it could be seen.
• Found in a search. Whether the search followed consent, an arrest or a warrant can decide whether the container may be used at all.
• Listed in a tow inventory. A line on a property sheet may not match the video of the car’s interior.
• A comment you made. A casual reference to having a drink in the car can end up carrying the entire allegation, so the precise words and the setting count.
• Recorded on camera. Footage from the officer’s body camera and dash camera, interior photos and the property receipt best show whether the item was open, where it was and who could reach it.

What the Enhancement Does and Does Not Change

• The minimum. It rises from 72 hours to six days (Section 49.04(b) and (c)).
• The ceiling. It does not move. A Class B offense is capped at 180 days and a $2,000 fine (Section 12.22).
• A 0.15 result. This is a different trigger that makes the offense a Class A misdemeanor, with up to a year in jail and a $4,000 fine (Sections 49.04(d) and 12.21). If the State alleges both, we sort out how they fit together before any plea is discussed.
• Earlier convictions. They change the grade, not the container. One prior makes a new DWI a Class A misdemeanor with at least 30 days, and two make it a third-degree felony (Section 49.09). Some pages say a third DWI with an open container carries “mandatory minimum prison time,” but the felony level comes from the priors. See second-offense DWI in Corpus Christi.
• The license. Whether or not a container was involved, a Section 49.04 conviction means a court-ordered suspension of 90 days to one year (Transportation Code Section 521.344(a)).
• The basics. Our page on first-offense DWI in Corpus Christi covers the penalties, probation conditions and deferred adjudication rules common to every Section 49.04 case.

Six Days, Probation and Deferred Adjudication

Several websites say the six days “cannot be probated or suspended,” that you must serve them before probation can begin, and that a standard first DWI has no minimum at all. None of this is accurate. A first DWI carries a 72-hour minimum, and the statutes do not support what those pages claim about the six days. What the law does say:

• Supervision remains possible. For a misdemeanor, a judge may order community supervision of up to two years (Article 42A.053). Article 42A.401 names the jail terms required when probation is granted in some intoxication cases, and an open container is not among them.
• The overlap is for the court to resolve. The DWI statute sets a minimum term of confinement, and the probation article is silent about it. Before we advise you on a plea, we check the current statutes, appellate decisions and the practice of the court that will hear your case.
• Deferred adjudication is not barred. Article 42A.102(b) excludes commercial license holders, test results of 0.15 or more and offenses enhanced under Section 49.09. A container is not on the list, so the judge decides based on the whole case.
• Its limits still apply. An interlock is required unless an evaluation supports a waiver, a later DWI counts it as a prior (Section 49.09(g)) and the nondisclosure statutes for deferred adjudication exclude DWI (Government Code Sections 411.072 and 411.0725).
• The class. Article 42A.403 requires the judge to order a DWI education course, finished before the 181st day of supervision unless the court finds good cause to waive it or extend the time.

Probation can end in revocation after a missed report, a failed alcohol test or a new arrest. See probation violations for DWI in Corpus Christi.

How We Test the Container Allegation

• Was the stop lawful? If not, both the container and the signs of impairment can be suppressed.
• How did it turn up? We ask what the officer could see before searching and whether the search was based on consent, an arrest, an inventory or a warrant.
• What was it, exactly? We request the report, photos, video, property receipt and evidence log to learn whether it was open, held alcohol and how much.
• Who had it? Ownership, reach, other occupants and what the driver knew all matter.
• Does the DWI hold up? The enhancement depends on a DWI, so a win on the stop, the arrest, the tests or the proof of intoxication takes the enhancement with it.
• Does the paperwork agree? The charging document, the offense report and any citation should all describe the same container in the same spot.
• Can it be bargained? A prosecutor may keep or drop the allegation as part of a plea. It carries weight because it moves the minimum, but no one can promise it will be dropped.

Your License Is a Separate Case

The container does not touch the administrative license case, which has its own clock. After a failed or refused test, DPS has to receive your written request for a hearing no later than the 15th day after you receive the notice of suspension (Transportation Code Sections 524.031 and 724.041). Counting starts at receipt, not at the arrest, and a late request is denied. Some pages say you have “only 15 days from the date of arrest” and that missing the date brings an “automatic” suspension. The statutes say the suspension takes effect on the 40th day after the notice is received (Sections 524.021(a) and 724.035(c)) and that a timely request holds it off until the administrative law judge rules (Sections 524.037(b) and 724.041(c)). Our page on license reinstatement and occupational licenses explains how to drive legally in the meantime.

Visitors, Beach Traffic and Busy Weekends

Corpus Christi draws visitors to the bay and the beaches, and many open container arrests start with a stop on a weekend when patrols are heavier. Drivers from out of town face the same Texas charge and the same Texas deadlines, with the added problem of getting back to court from far away. Some pages claim that DWI checkpoints in Corpus Christi turn up open containers. Texas does not use DWI checkpoints, as our own post explains, and every stop needs a lawful reason. If you live elsewhere, ask us how to handle your court settings. A magistrate sets bond soon after an arrest, and our post on your first court appearance in Corpus Christi explains that hearing. The case itself is then filed in a county court at law, and our misdemeanor lawyer in Corpus Christi page describes how those courts work in general.

What This Means for Your Nueces County Case

1. Find the DPS suspension notice and count 15 days from the day you got it. Court dates do not extend that deadline.
2. Put on paper what you remember about the container: where it was, whether it was open, who owned it, who else was in the car and what the officer said. Keep the notes for your lawyer alone.
3. Say nothing about the container to officers, passengers or online followers, and never ask a passenger to take the blame.
4. Save any ticket for the container, plus tow, impound and property receipts.
5. Tell us which nearby businesses have cameras, since many systems erase footage within days.
6. Obey every bond condition, attend every setting and stay off the road if your license is suspended.
7. Do not accept a plea before your lawyer has studied the video and photographs and explained how the six-day minimum applies to your case.

More About DWI Charges in Corpus Christi

More pages on the charges and steps that can follow a DWI arrest.

• felony DWI defense: how a DWI becomes a felony.
• common questions after a DWI arrest: plain answers to what people ask in the days after an arrest.

Why Corpus Christi Clients Choose Barton & Associates for Open Container DWI Defense

Since 2001, Barton & Associates has represented clients in Texas criminal courts. Our founding attorney, Gary J. Barton, holds Board Certification in Criminal Law from the Texas Board of Legal Specialization, prosecuted capital murder cases earlier in his career and has tried more than 100 cases to juries. Jim Erickson, a senior trial attorney, has practiced criminal defense in Texas since 1985 and has more than 250 jury verdicts across more than sixty counties. Open container evidence is physical and fades fast: where an item sat, who handled it, what the officer saw. We work from the records and recordings, take on the license case along with the criminal case and prepare each file for a possible jury trial.

No honest lawyer predicts the outcome of an open container case. What we can offer is a candid assessment: how strong the allegation is, what each choice risks and what we advise, which is occasionally to accept a plea. The first consultation is free and confidential. Clients meet with us by appointment at our Corpus Christi office, 5110 Wilkinson Drive, Suite 210, Corpus Christi, Texas 78415, and you can get directions to our office ahead of time. For the first meeting, bring what you can of the following, and call even if some items are missing.

• Arrest papers, a copy of any ticket for the container and the date of your next hearing
• The DPS suspension notice and the date you received it
• Your recollection of the container: location, condition, owner and who else was in the car
• Papers about any breath test, blood draw or refusal
• Tow, impound or property receipts
• Names of passengers and other witnesses
• Your license number, and whether you hold a commercial license
• A calendar of your key dates and deadlines

Frequently Asked Questions About DWI With an Open Container in Corpus Christi

What additional consequence does the open container enhancement add to a DWI?

It raises the minimum term of confinement for a first-offense DWI from 72 hours to six days (Penal Code Section 49.04(c)). The offense stays a Class B misdemeanor, and the maximum stays at 180 days in jail and a $2,000 fine. The State must show on trial that the driver had an open container of alcohol in his or her immediate possession.

Do I face two charges for an open container and a DWI?

No. The DWI enhancement is not a second charge. It raises the minimum on the DWI you already face. Section 49.031 is a different, fine-only offense (a Class C misdemeanor, up to $500) for possessing an open container in a vehicle’s passenger area on a public highway. A ticket under it can accompany the DWI and is handled as its own case.

What is the legal definition of an open container in Texas?

Under Section 49.031, it is any bottle, can or other receptacle holding some alcoholic beverage that is open, has been opened, has a broken seal or has lost some of its contents. Section 49.04(c) does not define the term, so whether that definition applies to the DWI enhancement is something we examine.

Can I get probation instead of six days in jail?

Probation is not ruled out, and a judge can place a person on community supervision for a misdemeanor for up to two years (Article 42A.053). How the six-day minimum fits with a probated sentence depends on the statutes, the case law and the court. Websites that say the six days cannot be probated are overstating what the statutes provide. We check before advising you on a plea.

Is it legal to keep alcohol in the trunk or glove box?

Under Section 49.031, a locked glove compartment or similar locked storage, the trunk and, in a vehicle without a trunk, the area behind the last upright seat are outside the passenger area. An unlocked glove box is not excluded, and the State may say it is part of the passenger area. We contest that when the facts allow.

Am I responsible if the container belonged to a passenger?

Not automatically. The enhancement turns on the driver’s immediate possession, and the stand-alone offense requires knowing possession. Who owned the container, who held it, who could reach it and what you knew are fact questions. A passenger’s open container does not by itself prove yours.

Does an empty bottle or a closed can count as open?

A sealed, unopened container is not open. An empty bottle that was opened, or one with a broken seal, can fit the definition only if it contains any amount of alcoholic beverage. A container holding a drink without alcohol does not qualify. We look at the photographs, the evidence log and any lab results.

Can the open container allegation be dropped or negotiated?

A prosecutor may keep the allegation or drop it as part of a plea agreement. It carries weight because it changes the minimum, but nobody can promise it will be dropped. If the stop, the arrest or the proof of intoxication fails, the enhancement falls with the DWI.

Can I get deferred adjudication with an open container?

Possibly. Article 42A.102(b) excludes a commercial license holder, a test result of 0.15 or more and an offense enhanced under Section 49.09. An open container is not on that list, so it depends on the rest of the facts and the judge. Deferred adjudication still counts as a prior for a later DWI, and an ignition interlock is required unless a waiver applies.

Does an open container make my license suspension longer?

No. A conviction under Section 49.04 carries a court-ordered suspension of 90 days to one year whether or not a container was involved (Transportation Code Section 521.344(a)). The administrative suspension depends on your test or refusal, and DPS must receive your written hearing request by the 15th day after you receive the notice.

Can a passenger be ticketed for an open container?

Yes. Under Section 49.031, anyone who knowingly possesses an open container in the passenger area of a vehicle on a public highway commits an offense, even if the car is parked. Passengers in a bus, taxi or limousine, or in the living quarters of a motor home, are excepted. It is a Class C misdemeanor with a fine of up to $500.

Can officers search my car for an open container?

Only on a lawful basis. We ask whether the stop was lawful and whether the search rested on consent, an arrest, an inventory or a warrant. A container seen in plain view through a window is treated differently from one found after a search, and the video often shows what the officer could and could not see.

What should I bring to the first meeting about an open container charge?

Bring your arrest paperwork, any ticket for the container, the DPS notice of suspension with the date you received it, your bond terms and your next court date. Add tow or property receipts, breath or blood paperwork, the names of passengers and notes about where the container was and who owned it. Call even if you cannot find everything.

Talk With a Corpus Christi DWI With Open Container Attorney

Timing is critical after an arrest: the license deadline is short and the details about the container fade quickly. Talk with a Corpus Christi criminal defense lawyer at Barton & Associates before you give a statement, sign a paper or agree to a plea.

Call our Corpus Christi office at 361-800-6780 or complete the online Free Consultation form to arrange a confidential meeting about the charge. Consultations at the office are by appointment only. The office is at 5110 Wilkinson Drive, Suite 210, Corpus Christi, Texas 78415.

Main Category: Criminal Defense Corpus Christi
Practice Area Category: DWI & Intoxication
Barton & Associates, Attorneys at Law
5110 Wilkinson Dr Suite 210, Corpus Christi, TX 78415
Office: 361-800-6780