New Jersey Open Container Law – N.J.S.A. 39:4-51b

Last updated: Nov 18, 2019

It is illegal to have an open container of alcohol in a vehicle anywhere in New Jersey. This law applies to everyone in the vehicle—both drivers and passengers. In addition, a person can be penalized under NJ’s open container law regardless if the vehicle is on a public highway or parked in a parking lot.

What is the Open Container Law?

N.J.S.A. 39:4-51b applies to any liquid beverage that is more than 0.5% alcohol. The container is considered “open” if the factory seal has been broken. This includes recorked or resealed bottles, as well as cups and glasses. Essentially, any container from which a person could or could have consumed liquid is considered “open.”

In addition, a person can be presumed to have drunk the contents of the container if:

The container is located in the passenger compartment of a vehicle,
The contents of the container have been partially removed, and
There is physical evidence consistent with that of a person having consumed alcohol (e.g. slurred speech, the smell of alcohol on breath, etc.).

Cannabis items are a new addition to the law. They refer to any unsealed cannabis that is intended to be smoked, vaped, or aerosolized. New Jersey defines cannabis as including all parts of the cannabis plant, the seeds, and every compound, derivative, mixture, and preparation of the plant which is cultivated for use in cannabis products. However, it does NOT include medical cannabis issued to registered patients.

Exceptions to New Jersey’s Open Container Law

There are several exceptions to New Jersey’s open container law. For example, open containers may be legally kept in the trunk of a vehicle or behind the backseat of a vehicle that does not have a trunk compartment. In addition, passengers may consume alcohol in legally authorized limousines and buses. Lastly, alcohol may be consumed in the living area of a motorhome or house trailer provided the vehicle is not in operation.

Type of Vehicle

Passengers may consume alcohol in legally authorized limousines and buses
Provided the vehicle is not in operation, alcohol may be consumed in the living area of a motorhome (RV) or house trailer

Storage

Open containers may be kept legally in the trunk of a vehicle
If the vehicle has no trunk, it may be kept behind the last upright seat (the backseat) of the vehicle

Empty Bottles

An open bottle with no liquid in it is considered trash, not an “open container.” However, the empty bottle could be used as evidence against a person being charged with DWI in New Jersey (assuming there were other factors other than just an empty bottle – like erratic driving and a positive blood alcohol test).

Penalties and Fines

A violation of New Jersey’s open container law is considered a traffic violation. A conviction means a fine of $200, but no points. Subsequent offenses can cost as much as $250 and result in up to 10 days of community service.

Since the offense is not a crime, it will not result in a criminal record. However, it will appear on one’s driving record.

If You’re Under 21 and Have Been Charged

The consequences of being under 21 and having an open container in the car carry much more serious offenses. This is because minors are not allowed to possess alcohol or cannabis at all, so the punishments are oriented towards discouraging this behavior by imposing penalties that are a step above what an adult would face in the same situation.

Consequences for Juveniles

A juvenile (a person under the age of 18) with an open container of alcohol in a vehicle can face serious trouble. A separate statute, N.J.S.A. 2C:33-15, makes it a disorderly persons offense for anyone under the age of 21 to purchase, consume, or possess alcoholic beverages, including in a vehicle. If the defendant is over 18 but under 21, he/she can face a penalty of up to 180 days in jail and a fine of up to $1,000. If the person is under 18, then he/she will face juvenile delinquency hearings in Family Court and could potentially be sentenced to time at a juvenile detention facility.

In addition, any person under 21 caught in possession of an open container of alcohol in a vehicle can have his/her license suspended for 6 months, even if he/she wasn’t driving!

Open Container Law and NJ Beaches

Nearly all of New Jersey’s beaches ban the consumption of alcohol. Many beaches even have checkpoints where state park officials will search bags for any container of alcohol, open or otherwise. Many beachgoers try to skirt around these checkpoints by filling non-alcoholic beverage containers (e.g. Coca-Cola bottles) with booze. Those who do this do so at their own risk—a lifeguard or police officer who smells alcohol can check the contents of the bottles and issue a fine and/or confiscate the drinks.

Drinking alcohol on a beach is a separate offense from NJ’s open container law. The exact fine and other penalties depend on the municipality and can range from $150 to as much as $2,000 in some towns, villages, and cities. Jail time is possible but community service is more likely in most cases.

What if I Am Charged With Violating New Jersey’s Open Container Law?

There are ways to beat a citation. While it is not considered a serious offense, it will still be on your driving record and carry fines and the possibility of community service. Therefore, it is important to reach out to an attorney to see if your circumstances warrant dismissal.

Contact An Attorney

One of the most important things to do if you’ve been charged with this offense is to contact an attorney. Not only are they trained to navigate the legal process, they can also help beat your citation. Beating a citation for New Jersey’s open container law will depend on the circumstances of the case. If the container was discovered following a search of the vehicle, then it may be possible to argue that the search was illegal, which would allow one’s attorney to prevent the evidence of the open container from being used against one at trial. Other defenses will be based on the facts of the case, the evidence against the defendant, and any other possible charges that may be filed against him/her as well (e.g., DWI).

Expunge the Open Container Law Offense?

Since New Jersey’s open container law is considered a traffic offense, it cannot be expunged. New Jersey records all traffic convictions permanently. A citation for having alcohol on a public beach is a civil offense that can be removed from one’s record 2 years after the defendant has satisfied the conditions of the sentence (i.e., paid the fine and completed jail or supervision). Likewise, a conviction for underage possession of alcohol can also be expunged after a period of 5 years following the satisfaction of the sentencing.

Case Law Analysis

State v. O’Driscoll, No. A-4341-10T2

In State v. O’Driscoll, No. A-4341-10T2, the defendant was convicted of DUI, refusing a breathalyzer, and possessing an open container. On appeal to the Supreme Court of New Jersey, Appellate Division, the accused argued that all three convictions should be overturned. While he was successful on the refusal charge for an unrelated reason, his appeal to overturn his open conviction for an open container was dismissed. The defendant had argued that because the state did not produce the alleged container at trial, nor did the state produce real evidence regarding its contents, that the conviction should be vacated. The appellate court disagreed strongly. The officer had testified that the defendant had admitted to the presence of an open alcohol bottle. The officer also testified that he had found an almost-empty champagne bottle in the car. The court stated that this was more than sufficient for a conviction. In the words of the court, the defendant’s argument regarding the open container conviction lacked “sufficient merit to warrant discussion in a written opinion.”

State v. Schubert, 561 A. 2d 1186

In State v. Schubert, 561 A. 2d 1186, the court had occasion to consider, among many other issues, whether the search of a vehicle based solely on an open container of beer and the smell of alcohol on the breath of the defendant was constitutionally permissible. The court was very brief in its dismissal of the defendant’s argument that the search of the vehicle violated his Fourth Amendment rights. The court considered the argument to be so deficient that it was without merit. To the Appellate Division, an open container of alcohol and the smell of alcohol on the defendant’s breath was more than enough to constitutionally ground a search of the defendant’s car.

State v. Jones, State v. Freeman, 741 A.2d 104

In the consolidated cases of State v. Jones, State v. Freeman, 741 A.2d 104 (1999), the Appellate Division of the Superior Court of New Jersey considered whether the smell of alcohol on a driver’s breath combined with an admission of recent alcohol consumption justified a search of the defendant’s vehicle for open containers of alcohol. The trial court denied motions to suppress evidence found in the search. The Appellate Division reversed this, stating that the smell of breath alcohol and admission of alcohol consumption, along with nervousness on the part of the suspect, do not justify a search of the vehicle for open containers. Thus, the convictions were overturned. Importantly, the court also found that the search would have been justified had the officer viewed an open container (as in Schubert) or spilled alcohol in the car.

State v. Pena-Flores, State v. Fuller, 965 A.2d 114

In State v. Pena-Flores and State v. Fuller, 965 A.2d 114 (2009), the Supreme Court of New Jersey considered when a police officer may search a vehicle for evidence, like an open container of alcohol, for example, without a warrant. Confirming long-standing, and sometimes confusing, previous decisions, the court found that a police officer requires: Probable cause to believe evidence will be found in the vehicle, and Exigent circumstances that prevent him or her from being able to apply for a warrant. The court was careful to confirm that the mere fact that a vehicle can be made mobile is not an exigent circumstance. In other words, police must show that it is not practical to get a warrant, not just that the car could be moved. The court found that exigent circumstances must be determined on a case-by-case basis.

In addition, any person under 21 caught in possession of an open container of alcohol in a vehicle can have his/her license suspended for 6 months, even if he/she wasn’t driving!

Who Should I Contact?

If you or a loved one has been cited for violating NJ’s open container law or for any other traffic offense in New Jersey, contact an attorney for help. The lawyers at Rosenblum Law are skilled traffic ticket and criminal defense attorneys with offices in New York and New Jersey. Email Rosenblum Law or call 888-815-3694 today for a free consultation about your case.

Frequently Asked Questions

Can a passenger have an open container of alcohol in a car?

No. NJ law expressly states that neither driver nor passenger may have an open container of alcohol in a motor vehicle.

Can you drink on a sidewalk in New Jersey?

There is no statewide ban on public drinking in New Jersey. However, many parts of the state have local laws banning the consumption of alcohol in public, including on sidewalks and in parks.

What if the car is in my driveway?

A person sitting in their car can be considered to be “operating” the vehicle, even if it is parked in his/her driveway with the engine off. As such, having an open container of alcohol in this scenario can still lead to a citation.

Can I drink non-alcoholic beer while driving?

A non-alcoholic beer, by its definition, is a non-alcoholic substance. It is akin to soda or water in the eyes of the law, and should not pose any problems for the driver.

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Last updated: Nov 18, 2019

Adam H. Rosenblum

About The Author

Adam is the founding attorney and principal of Rosenblum Law. With more than two decades of legal experience in numerous areas of law practice, his primary focus is law firm management and business development.

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Charged with Violating the Open Container Law in New Jersey?

What is the Open Container Law?

Exceptions to New Jersey’s Open Container Law