How America's Open Container Laws Discriminate

Open container laws, which prevent the consumption of alcohol in public spaces and in vehicles, are viewed by many as safeguards of public safety and decency. And they can function as such, especially in the case of open containers in vehicles—the group Advocates for Highway & Auto Safety claims that such laws (which do not generally apply to buses, limos, and taxis) help prevent drunk driving, as well as hit-and-run accidents.

According to the Center for Disease Control (CDC), almost 30 people die in the U.S. each day from car crashes resulting from an alcohol-impaired driver. These crashes cost more than $59 billion annually.

Yet laws targeting open containers in public, which ostensibly aim to curb public drunkenness and disorderly conduct, are often disproportionately enforced among minorities. A Salon article from 2013 pointed out that 12 of the 15 New York City precincts that issued the highest number of open container summonses per capita in 2010 were predominantly Black and Latino.

In 2013, The Huffington Post published a comprehensive history of open container laws in America, tying the origin of such laws back to prohibition, which was repealed in 1933, and more recently, to the "broken windows" theory of policing, which maintains that cracking down on smaller infractions helps to prevent larger ones. As with other types of "broken windows" policing, this has resulted in a de facto discrimination through often disproportionate targeting of minorities.

Punishments for violating open container laws vary widely from state to state, ranging from a minimal fine ($25 in New York City as of 2013) to much larger fines, and even jail time.

What are the open container laws in the U.S.?

Open container laws are not regulated on the federal level. In 1998, the Transportation Equity Act for the 21st Century (TEA-21) was signed into law. TEA-21 is, according to New York State’s Department of Transportation, the largest public works bill on record. As part of TEA-21, Congress asked states to pass open container laws.

In order to comply with TEA-21, open container laws as related to vehicles must fit six criteria:

  1. Prohibit possession of any open alcoholic beverage container and the consumption of any alcoholic beverage in a motor vehicle
  2. Specify the passenger area of any motor vehicle
  3. Apply to all alcoholic beverages
  4. Apply to all occupants
  5. Specify on a public highway or the right-of-way of a public highway
  6. Specify primary enforcement

According to Advocates for Highway & Auto Safety, "In an effort to encourage states to comply with the federal law, those states that are non-compliant have three percent of their annual federal transportation funds diverted to highway safety programs that fund alcohol-impaired driving countermeasures and law enforcement activities. This federal requirement is known as ‘redirection,’ and has thus far been largely ineffective as an incentive for all states to enact strong open container laws."

Eleven states are not in complete compliance with the open container law stipulations set out by TEA-21. A general statute in Connecticut, for instance, outlaws drinking while operating a motor vehicle but doesn’t mention passenger behavior. The National Conference of State Legislatures provides a summary of the open container laws in each state as they pertain to cars, public consumption, and removing open containers from licensed establishments.

Even when open container laws are enforced on the state level, certain cities and “entertainment districts” within these states may permit open containers in public—often with regulations placed on the time of night and/or type of container.

What cities are exceptions?

The Huffington Post estimated in 2013 that around two percent of the country lived in a city that allowed public drinking in some capacity. Many of the cities that do are the ones that might first come to mind: the Las Vegas Strip, for instance, and the French Quarter of New Orleans (as long as containers are plastic and not glass). Alcohol was legal on San Diego beaches until 2008, despite California’s open container laws. The movement behind the ban, according to the Voice of San Diego, was spurred on by a Labor Day clash between drunken beach-goers and the police.

Other cities have particular sections that are designated as entertainment districts, such as the Power & Light District, in Kansas City, Missouri, which allow public consumption of alcohol. Henry Grabar of Salon wrote that relaxing open container laws could rejuvenate urban areas, but cautioned that entertainment districts often lead to over-commercialization and gentrification, thus possibly countering the democratizing effects of relaxed open container laws.

Despite the draw that these exceptions have for tourists, and the increased business and attention they can bring to a metropolis, public opinion seems to support open container laws. The Huffington Post and YouGov conducted a poll in 2013 that revealed that while 81 percent of respondents thought that drinking on front porches and stoops should be legal, only 26 percent thought drinking on city streets and sidewalks should be legal.

This discrepancy is perhaps instructive—people may be more wary of the rowdy partygoers on their way to or from bars than of drinkers who are containing their consumption to directly in front of property where they (or their friends) live. This reasoning, however, means that the homeless, who don’t have porches or stoops, and lower income individuals who may be less likely to go to bars are easy targets for enforcement of such laws.

What are the open container laws in Europe?

Proponents of Europe’s open container laws (France, Germany, Austria, Switzerland and Portugal have no ban on public consumption, though particular cities may place restrictions) often claim that drinking in public is not one and the same as public intoxication. Drinking laws are more permissive in Europe in general, as the legal drinking age is typically 18 rather than 21. It is worth noting that open container laws related to vehicles do exist in many parts of Europe, as a primary reason for the drinking age of 21 in the U.S. is to curb drunk driving.

In Ireland, as in the U.S., there is no national legislation outlawing public consumption of alcohol, and local governments are left to set restrictions as they see fit. In 2008, public consumption of alcohol in Ireland’s capital, Dublin, was banned.