An open container charge under Vehicle Code 23222 often rides alongside a DUI, and while it is a lesser offense on its own, it shapes how the whole stop looks and can be a bargaining chip in resolving the case. I am Joel Brand, and here is what the statute says and how it factors into a California DUI.

The text of the law

Vehicle Code 23222. (a) A person shall not have in their possession on their person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (c) of Section 23220, a bottle, can, or other receptacle, containing an alcoholic beverage which has been opened, or a seal broken, or the contents of which have been partially removed. (b)(1) Except as authorized by law, a person who has in their possession on their person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (c) of Section 23220, a receptacle containing cannabis or cannabis products, as defined by Section 11018.1 of the Health and Safety Code, which has been opened or has a seal broken, or loose cannabis flower not in a container, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).

Subdivision (b) goes on to exempt cannabis kept in the trunk, and subdivision (c) exempts qualified medical patients whose cannabis is in a sealed or closed container. The full text is published by the Legislature, but the operative rules are the ones above.

What it actually prohibits

The alcohol provision makes it an infraction to drive with an opened container of alcohol, or one with a broken seal or partially removed contents, in your possession. A companion statute, Section 23223, extends the same idea to having the open container anywhere in the passenger area, not just on your person. The cannabis provision similarly bars an opened cannabis container or loose flower within reach while driving. These are infractions, typically punished by a fine, not jail, which is one reason they are easy to overlook even though they shape the larger DUI case.

Why it matters in a DUI

An open container charge rarely travels alone. When it appears, it is usually because the officer found a bottle or can during a DUI stop, and it reinforces the narrative that you had been drinking. That makes it more than a side issue: it colors how the prosecutor and a jury view the case, even though possession of an open container is not proof that you were impaired while driving. Part of my job is keeping the open container from being used to inflate the DUI.

Common defenses

  • The container was not open, or not in the prohibited location. A sealed container, or one properly stored in the trunk, does not violate the statute.
  • It was not yours or you did not knowingly possess it. Possession has to be established, which can be contested when others were in the car.
  • The stop or search was unlawful. If the officer had no lawful basis to stop you or to search the car, a motion to suppress can exclude the container and the rest of the evidence.

How it helps resolve the DUI

Because the open container is a minor infraction, it can become useful in negotiation. Sometimes related charges are bundled and resolved together in a global settlement, and a clean resolution of the DUI, such as a reduction to a wet reckless, can carry the lesser counts with it. The key is to make sure the open container is treated as the minor matter it is, rather than as evidence that you were impaired.

The cannabis side is increasingly common

With cannabis legal for adults, the open-container rule for marijuana comes up more often. The statute treats an opened cannabis container or loose flower within the driver's reach the same way it treats open alcohol, with the trunk and sealed-container exemptions. It frequently appears in cannabis DUI investigations, where, as with alcohol, possession is not the same as impairment, and impairment is what the DUI actually requires.

How it fits the bigger picture

An open container charge is best understood as part of the overall DUI defense rather than in isolation. The lawfulness of the stop and any search, the strength of the impairment evidence, and the path to a reduction all interact. See my top DUI defenses and the penalties guide for how the charges combine.

Possession is not impairment

The single most important point to keep straight is that having an open container is not the same as driving under the influence. The open-container statute is about possession of a container in a particular place; the DUI statutes are about impairment or a blood alcohol level while driving. A sober designated driver can technically violate the open-container rule if a passenger's opened can is within reach. Prosecutors and juries can blur the two, and I make sure the open container is not allowed to stand in for proof of impairment that the state must establish independently.

What about passengers and shared vehicles

Open-container cases get complicated when more than one person is in the car. The alcohol provision in 23222 turns on possession "on their person," while the companion statute reaches the passenger area generally, so who actually possessed the container, and where it was, matters. In a shared vehicle, a rideshare, or a car full of passengers, the container may not be attributable to the driver at all. These facts are worth developing, because they can defeat the open-container count and weaken the broader narrative that the driver had been drinking.

Charged with an open container and a DUI? Let's talk.

The open container is usually the smaller part of the case, but how it is handled affects the whole, and that is exactly what I review. Use the free case analysis on this page, or call me directly at (888) 271-6644. I answer my own phone, 24/7.

From the DUI blog: An Open Container Was Found in Your Car During Your DUI Arrest. What Now?.