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

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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.).

Exceptions to NJ 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.

Penalties and Fines

A violation of NJ’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.

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.

How To Beat NJ Open Container Law Charges

How to beat a citation for NJ’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).

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.

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!

Expunge NJ Open Container Law

Since NJ’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.

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.

Is an empty bottle considered an open bottle?

No. 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 NJ (assuming there were other factors other than just an empty bottle like erratic driving and a positive blood alcohol test).

Can you drink on the sidewalk in New Jersey?

There is no statewide ban on public drinking in NJ. However, many parts of NJ 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.

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.