Open Container Absurdity

Here’s a law that irritates me: O.C.G.A. § 40-6-253 – “Consumption of alcoholic beverage or possession of open container of alcoholic beverage in passenger area.” Commonly called “open container”, this law is 418 words in length, when malice murder is defined in only 48 words. But that isn’t what irritates me. What I find repugnant is that otherwise law-abiding Americans who wish to imbibe in adult beverages while being ferried on our thoroughfares are not lawfully allowed to so enjoy. The presumption is undoubtedly that if the passengers are so engaged in such frolicking measure, so might the driver. In other words, the law presumes the driver cannot be trusted.

The statute provides that if Amy (driver), Arthur (passenger), Gina (passenger) and Jason (passenger) are in the car upon a roadway or shoulder thereof, and Arthur is shown to possess an open bottle of Boone’s Farm, Gina and Jason are not guilty of the open container offense, and Amy, as the driver, since not alone, is not guilty. Yet the car can be stopped by the police. “(3)  Only a person who consumes an alcoholic beverage or possesses an open alcoholic beverage container in violation of this Code section shall be charged with such offense; provided, however, that an operator of a motor vehicle who is alone in the passenger area of such motor vehicle shall be deemed to be in possession of any open alcoholic beverage container in such passenger area.”

open container

After all these years of DUI enforcement and public awareness campaigns, including designated driver campaigns by the alcohol industry, there is no excuse for being intoxicated and driving. I have little sympathy for someone guilty of that offense, but there are penalties to cover that. To ban an open container because the driver MIGHT drink is an incredible overreach by the government. It is often a throwaway charge, but it is grounds to stop a vehicle when no legitimate cause exists. The penalty is no jail time and up to a $200 fine, which indicates even the Legislature recognizes the triviality of the supposed offense, yet they leave it on the books.

We now have a law that prohibits the driver of an automobile from holding a telephone while engaged in conversation or texting. I have no problem with that as explained in prior columns. But the law allows passengers to text and talk logorrheically. There really isn’t a dime’s worth of difference between passengers drinking and talking when it comes to the driver’s ability to drive. Why not totally prohibit phone use in a car? Many cars already have idiotic navigation or phone systems that don’t allow the use of those systems when the vehicle is moving. Often t­­­here is no “I am a passenger” override. That is frustrating too, but not as frustrating as overbearing laws that deprive us of liberty.

And finally, if you do drink and drive, resulting in running into a ditch, tossing your empties into the ditch isn’t going to work as you can be charged even if the open container is outside the vehicle, as Mr. Simmons’ learned. “The fact that an open container of malt liquor was sitting in the snow directly outside the driver’s door of defendant’s v

ehicle was sufficient to support his conviction for possessing an open container.” Simmons v. State, 321 Ga. App. 743 (2013).

Have a good weekend and be careful out there.


Kelly Burke, master attorney, former district attorney and magistrate judge, is engaged in private practice. He writes about the law, rock’n’roll and politics or anything that strikes him. These articles are not designed to give legal advice, but are designed to inform the public about how the law affects their daily lives. Contact Kelly at to comment on this article or suggest articles that you’d like to see and visit his website to view prior columns.


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