Delaware Open Container Law

You know that drinking and driving is illegal in every state in the United States. But what about drinking when you are a passenger in a car, rather than driving the vehicle?

Open container laws cover this. They pertain to alcoholic beverages that are open in your car while you are driving. An open container law prohibits a person from drinking alcohol under certain conditions, such as when they are in a car or out in the street in a public area. Delaware is one of several states that do not have open container laws.

This can lead to questions about the legalities of alcohol in cars. Are you allowed to have an open container in your car if you are not drinking in DE? What could happen if you do? This guide will answer all of your questions about open container laws in Delaware and what you need to know if police pull you over in this situation.

First, we’ll define what the lack of an open container law in Delaware means.

What Is Open Container Law?

Many states have open container laws which prohibit passengers from drinking in a moving vehicle or even having an open container of alcohol in a vehicle. However, Delaware — alongside Alaska, Connecticut, Missouri, Mississippi, Rhode Island, Tennessee and Virginia — are exceptions to this rule. In Delaware, it is legal for passengers to have open containers of alcohol and to drink from those open containers while the driver is driving. However, a driver cannot drink and drive in Delaware.

What Is an Open Container?

An open container is defined as meeting at least one of three criteria:

• Being open
• Having the seal broken
• Missing some of its contents

Open containers cover not just fresh bottles of alcohol but also alcohol that has been poured into another container. It does not matter if your passenger opened the bottle in the car or before they got in. It is still considered an open container.

What Does a Lack of an Open Container Law Mean?

In states without open container laws, if you have a passenger in your car, they can drink alcohol from an open container while you drive. They are allowed to drink wherever you head to within state lines, but if you cross over into a nearby state where open containers are illegal in cars, you could face legal trouble over your passenger’s actions.

Can Passengers Drink Alcohol in a Car in Delaware?

Yes. The law puts no limitations on whether your passengers can drink while you operate a vehicle. It remains illegal for you to drink and drive, though. Only one state, Missississippi, allows drivers to drink while driving.

You still have to meet the state’s legal age limit to drink alcohol in a car. You must be at least 21 years of age. Occasionally, you may encounter a situation where a local ordinance bans the consumption of alcohol in a car by a passenger. You should know the rules for anywhere you drive.

What Happens If You Have an Open Container in Your Car?

If a police car pulls you over and you have an open container in the car, the authorities may assume you have been drinking as well. They may administer a field sobriety test or consider arresting you on suspicion of drunk driving. While the Delaware blood alcohol concentration limit is 0.08, you can be arrested for a level of 0.05 if police note other evidence of impairment, which may include an open container in the car.

It is important to know your rights in this situation. It is not fair for police to assume you have been drinking just because someone in your car has been legally imbibing. You may need to speak to a lawyer about your case.

Can You Walk Around in DE With an Open Container?

Open container laws also apply to public spaces. The aim behind them is to make sure public places remain undisturbed by people who have had too much to drink. Public spaces may include:

• Public sidewalks
• Parks
• Neighborhoods
• Steps in front of a condominium or apartment building

Because Delaware does not have an open container law, you might think it is technically legal to possess alcohol in open spaces. But unless there is a local ordinance that specifically permits this, you may want to be careful. Across the country, only a handful of cities have laws allowing open containers in public, including New Orleans, Las Vegas and Sonoma, California.

Many of these places also require you to put your alcohol in a neutral container, such as a disposable cup from a bar or restaurant.

Places Where Open Containers Are Legal

There are nearly a dozen states where it is legal to operate a vehicle while someone else in the car drinks alcohol from an open container. These states lack a law prohibiting the practice. Washington, D.C., also does not have an open container restriction.

What Are the Marijuana Open Container Laws in the U.S.?

Marijuana is legal for recreational use in a handful of states, including Colorado and California, but it remains illegal in Delaware. Many states that have legalized pot still have open container laws that apply to this substance and prohibit open baggies of marijuana in cars. Most states also do not allow passengers to use marijuana while the car is being driven.

What Is Implied Consent?

In Delaware, implied consent laws mean that if you are stopped at a DUI checkpoint or by a police officer who suspects you have been drinking, you must submit to blood, urine or breath testing for blood alcohol levels and you must show proof of insurance as well as your driver’s license if you are requested to do so. You will face penalties if you refuse to comply.

If you are driving in a vehicle with passengers who are drinking or who have open containers of alcohol, you cannot be assumed to be drinking. However, if a police officer sees open containers of alcohol or drunk passengers and assumes you have been partaking too, you may be asked to prove your sobriety through a blood-alcohol test.

Unfortunately, you may be accused of drinking and driving even if you were not, because your passengers appear visibly intoxicated. If you are falsely accused or if you are facing DUI charges, it is important to consult with a DUI lawyer in Delaware.