North Carolina Open Container Laws: Offenses, Penalties, Defenses

Under North Carolina open container laws, a passenger caught with an open beer faces an infraction, while a driver with alcohol in their system and an open container in the passenger area faces a criminal misdemeanor. Both offenses live in the same statute, N.C.G.S. § 20-138.7, but they carry very different consequences, and a second conviction on the driver offense triggers mandatory license revocation.¹

What Counts as an Open Container

An open alcoholic beverage container is any bottle, can, or other receptacle that holds any amount of alcohol and is either open, has a broken seal, or has had some of its contents removed.² A half-empty bottle of wine with the cork pushed back in still qualifies. So does a flask that’s been opened, or a beer can with a trace amount left inside. The container doesn’t need to be in anyone’s hand. It just needs to be present and not in its original sealed condition.

Where the container sits is what triggers the law. The statute covers the “passenger area,” meaning all seating areas and any space reachable from a seat, including the glove compartment and center console. The trunk is excluded. In an SUV, hatchback, or other vehicle without a separate trunk, the area behind the last upright seat is also excluded.¹ An open bottle behind the back row of an SUV is fine. The same bottle on the floor behind the driver’s seat is not.

The law applies on any highway or its right-of-way, and it applies whether the vehicle is moving or parked. A car sitting on the shoulder with the engine off can still produce a violation.

The Two Offenses Under Section 20-138.7

The statute creates two separate offenses, and they target different people.

Driver Offense: Misdemeanor

A driver commits a misdemeanor when two things are true at the same time: an open alcoholic beverage container is in the passenger area, and the driver is either actively drinking or has alcohol remaining in their body.¹ Both elements are required. A sober driver whose passenger has an open drink does not commit this offense.

General Possession: Infraction

Any person, driver or passenger, who possesses an open container or drinks alcohol in the passenger area commits an infraction, not a misdemeanor.¹ Only the person actually holding or drinking from the container gets charged. The statute also specifies that this infraction is not a moving violation, which limits its effect on your driving record.

So a passenger sipping a drink faces a minor infraction. A driver who has been drinking and has an open container in the car faces a criminal misdemeanor. The dividing line is whether the driver has alcohol in their body.

Penalties

The Infraction

The general possession offense carries no jail time and no criminal record. You pay a fine and court costs. Because it isn’t a moving violation, it doesn’t produce the insurance and license points that come with a speeding ticket or reckless driving charge.¹

First Misdemeanor Conviction

A first conviction under the driver subsection is a Class 3 misdemeanor with a maximum fine of $200.³ For a defendant with three or fewer prior convictions of any kind, the sentence is limited to a fine. With four or more, short jail sentences of up to 20 days become possible, though courts rarely impose them for a standalone open container case.

Second or Later Misdemeanor Conviction

A second or subsequent conviction under the driver subsection is a Class 2 misdemeanor. The maximum fine rises to $1,000, and jail time of up to 60 days is possible depending on prior conviction history.4 North Carolina court costs are added on top of any fine, and in many districts those costs alone run past $100.

Any misdemeanor conviction also creates a criminal record that shows up on background checks. Insurers frequently raise premiums after alcohol-related vehicle offenses, even a low-level one.

Mandatory License Revocation on a Second Conviction

A second or subsequent conviction for transporting an open container under N.C.G.S. § 20-138.7 requires the North Carolina Division of Motor Vehicles to revoke your license.⁵ The revocation is not discretionary. A first offense won’t cost you your license, but treating a second charge lightly because it’s “just an open container” can leave you unable to drive legally.

Exceptions

The statute permits open containers in a few specific situations:

Passengers in vehicles primarily used to transport people for compensation, such as taxis and limousines.
The living quarters of a motorhome or house trailer. The cab or driving area is not included.
Vehicles being used for the lawful sale or transport of alcohol under a valid permit.

Rideshare vehicles are a common point of confusion. Whether an Uber or Lyft would qualify as a vehicle for hire under the statute, the companies themselves prohibit open containers as a condition of using the platform, so a rider bringing an open drink risks having the trip canceled and the account flagged regardless of the legal question.⁶

Leftover Wine from a Restaurant

North Carolina lets you take an unfinished bottle of wine home from a restaurant, but the restaurant must re-cork or reseal the bottle before you leave. Once the bottle is in your vehicle, the ordinary open container rules apply. Because the manufacturer’s original seal has been broken, the bottle counts as open, and it needs to travel in the trunk or, in a vehicle without a trunk, behind the last upright seat. A re-corked bottle in the cup holder is still a violation. The safer route is to have the restaurant bag the bottle and place it in your trunk before you start driving.

Commercial Drivers

CDL holders operate under a stricter federal rule. A driver of a commercial motor vehicle cannot possess wine, beer, or distilled spirits while on duty or operating the vehicle. The only exceptions are alcohol being transported as manifested cargo and beverages belonging to bus passengers. The container doesn’t have to be open, and there’s no trunk-style exemption. A driver found in violation is placed out of service for 24 hours.⁷ If the situation escalates to a DUI conviction, CDL disqualification runs one year for a first offense and a lifetime for a second.

Defenses

The Container Was Outside the Passenger Area

If the container was in the trunk, or behind the last upright seat in a vehicle without a trunk, it’s outside the statute.¹ Photographs from the scene, dashcam footage, and passenger testimony can all support that.

The Driver Had No Alcohol in Their System

For the misdemeanor charge, the prosecution has to prove that the driver was consuming alcohol or had alcohol in their body at the time of the stop. If the open container belonged to a passenger and the driver hadn’t been drinking, the driver can’t be convicted under the misdemeanor subsection, though the passenger may still face the infraction.¹

Challenging the Stop

Officers need reasonable suspicion to pull you over. If the stop wasn’t justified, evidence discovered afterward, including the open container, can be suppressed. The strength of this defense turns on what the officer documented, whether dashcam footage backs it up, and whether the stop followed standard procedures.

No Proof of Possession

For the infraction, only the person who actually possessed or drank the alcohol can be charged. A container on the floor of a car with several passengers has to be linked to a specific person. An open bottle sitting between two riders doesn’t automatically make either of them guilty if no other evidence connects it to someone.

1
North Carolina General Assembly. North Carolina General Statutes 20-138.7 – Transporting an Open Container of Alcoholic Beverage
2
Legal Information Institute. 23 USC 154(a)(3) – Definition of Open Alcoholic Beverage Container
3
North Carolina General Assembly. North Carolina General Statutes 15A-1340.23 – Punishment Limits for Each Class of Offense and Prior Conviction Levela>
4
North Carolina General Assembly. North Carolina General Statutes 15A-1340.23 – Punishment Limits for Each Class of Offense and Prior Conviction Level
5
North Carolina General Assembly. North Carolina General Statutes 20-17 – Mandatory Revocation of License by Division
6
Uber. Following the Law
7
eCFR. 49 CFR Part 392 – Driving of Commercial Motor Vehicles