Arizona Open Container Law: What is Legal & What is Not

by Aaron Black • September 26, 2019

Driving with an open containerArizona’s open container law means you can get arrested without being intoxicated. And in certain situations, it’s perfectly legal to drink while inside a vehicle.

Open containers of alcohol under the law, Arizona Revised Statute §4.251, is the foundation of a class 2 misdemeanor and, if convicted, begins the long reach of a criminal record. A person convicted of an open container faces a fine of up to $750, possible jail time and probation, depending upon the seriousness of the offense.

Arizona’s open container law conforms to the requirements encouraged under a federal program and all but 14 states follow it.

The law states consuming a spirituous liquor or possessing it while operating a vehicle or as a passenger while on a public road. So drinking on a golf cart is not a violation because it’s on golf course pavement. This law, though, fails to define what a minimum amount of an alcoholic beverage is. So, any amount, even droplets, can be illegal.

An open container is defined in Arizona law as a beverage that has a broken seal, and a portion of the contents have been removed. And the famed ‘red cup’ qualifies, too.

The statute also defines what a container is and what qualifies as “open.” A container means any bottle, can, jar, or a container and under Arizona Revised Statute §4-244 the definition expands that to containers from a licensed bar, beer, and wine bar, store, microbrewery or restaurant.

For example, a steak dinner with left-over red wine in a bottle to take home. The bottle, however, must be sealed in some way, such as reinstalling the cork, so it’s flush with the bottleneck or some secure device.

A designated driver who has passengers with open containers can be charged.

Exceptions to Arizona’s Open Container Law

It’s perfectly fine to travel with an open container if it’s in the vehicle’s trunk out of reach by the driver and passengers. For vehicles that don’t have a trunk, such as SUVs, the open container may be placed behind the last row of seating. A locked glove compartment is not considered as a passenger compartment, but one that is unlocked is.

The legislature found it fitting to make exceptions to the open container law. So passengers in tour buses, limousines, and taxis may indulge without penalty. And so may those in motorhomes as long as the open container is in the living area. Passengers on watercraft may drink but not the person operating the boat.

The legislature recently added an exception for vehicles that are part of a “Transportation Network Company,” such as Uber and Lyft. These passengers may drink in route.

Alcoholic Beverages Defined in Arizona Law

An alcoholic beverage is a beer, wine, malt beverage, distilled spirits, and mixed drinks – anything that has 0.5 percent or more alcohol. Non-alcoholic beers and mixes are legal, but some so-called non-alcoholic beers may contain a trace of alcohol that reaches the 0.5 percent baseline.

Open Containers in Public Places

Open beer containers are allowed in parks and certain public places, but several restrictions apply, and a permit is required. The permit isn’t guaranteed a reservation for space. In Phoenix, AZ, a permit to have beer at a gathering in a public park is $28 a day permit fee. Glass containers can’t be used. For events with more than 50 people, a Special Activity Request is necessary.

For other cities in the Valley of the Sun, it’s best to check with them for fees and rules.

Open containers are forbidden in parking lots, band shells, sidewalks, school property, on steps on a hallway of apartment buildings and areas where children play. Stadiums allow open containers on game day tailgating parties.

What to do at the Traffic Stop

Traffic officers stopping a driver on suspicion of a DUI will add the open container charge if they see it. The officer may use the sighting as a reason to search the vehicle, which could lead to even another offense, perhaps finding drugs in the vehicle.

It’s advisable to decline to answer an officer’s questions, but do so politely and invoke your Fifth Amendment right to remain silent. Our constitution protects us from incriminating ourselves. Police know this, too, but they may continue to ask questions. Just tell them that you want to be represented by an attorney and to have the attorney present during interrogation.

This is crucial because anything you say will be used against you, so declining to answer questions is your first line of defense.

In finding the open container in the passenger area, the officer may conclude that you were drinking and ask you to submit to a breathalyzer test.

Open Container Defenses

The state must prove its case beyond a reasonable doubt. It’s the DUI Defense Attorney’s job to establish reasonable doubt.

Several defenses are available to those arrested for an open container, but the circumstances dictate the best defense to use.
  • The traffic officer didn’t have probable cause or reasonable suspicion to make the traffic stop, which is a violation of civil rights.
     
  • The open container was found during an illegal search of the vehicle.
     
  • The open container didn’t belong to you, so you didn’t possess it. Passersby sometimes do throw their open containers into pickup beds and open car windows, so make sure you don’t leave fingerprints on the container when you discovered it.

    Taking empty beer bottles to a recycling place can be a defense, but it’s best to transport them, so they are not within your reach to avoid possession.
The objective is to have the charge dismissed or to get it reduced, which requires an aggressive probe of the state’s evidence to find flaws.

Free Legal Advice

An open container may seem trivial offense, but a class 2 misdemeanor conviction is a serious crime bearing penalties that can complicate your life requiring the efforts of an experienced open container defense attorney.

I provide a free legal case consultation over the phone 24/7 without any obligation to hire me to defend you. I’ll evaluate your version of the case, answer your questions, and advise you of the possible options.

Contact Phoenix DUI Defense Attorney Aaron Black or call (480) 729-1683, and I’ll respond promptly unless I’m in court.

I provide personalized service and defend cases in all the city, state, and federal courts in Arizona.
 

About the Author

Aaron Black is the founder and sole attorney of the Law Office of Aaron Black. Located in Phoenix, Arizona, his DUI and criminal defense law firm provides legal services to people who have received felony or misdemeanor charges from the state.

Aaron has developed a strong interest in defending people who have been arrested and received criminal charges for driving under the influence. With his professionalism and knowledge of Arizona DUI and criminal law, he has acted as a check and balance on the police, prosecution and courts and has protected a great number of his clients from excessive and unfair sentencing.

Along with DUI defense, Aaron handles a range of other criminal matters, including aggravated assault, burglary, domestic violence, drug possession, drug trafficking, fraud defense, insurance fraud, sex crimes and white-collar crime.

After graduating college in 2003 from the University of Arizona, Aaron decided to pursue a law degree. He followed a family long tradition and went to the University of South Dakota School of Law where he pursued his goal of becoming a criminal defense lawyer.

After passing the Arizona and South Dakota bar exams, Aaron joined the Maricopa County Office of the Public Defender where he defended hundreds of people charged with serious criminal offenses. His work as a public defender helped him sharpen his litigation skills and gave him a unique insight into the Arizona criminal justice system.

Over the course of his 15-year legal career, Aaron has spent a considerable amount of time in both Arizona justice, municipal, state and federal courts. He has argued over 50 jury trials, tried over 100 bench trials and has become one of the highest-rated criminal and DUI defense attorneys in Phoenix and the surrounding areas. He has received a 10/10 rating from the legal directory Avvo because of his legal background and successful case record. Since 2014, he has received the Super Lawyer rating for his work as a Phoenix DUI and criminal defense attorney.

You can review Aaron’s Attorney Bio page for more information about his background, education and experience as a Phoenix DUI and criminal defense attorney.
 
In light of the Coronavirus pandemic, I wanted to inform clients and potential clients I am still available for consultations. I am always available by phone, text and/or email. We can also use Facetime for social distancing. The criminal justice system is not stopping due to COVID-19.

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