Virginia Open Container & Drinking in Public Laws

You don’t have to be drunk to be charged with an alcohol related crime in Virginia. Virginia Code §4.1-308 makes it a misdemeanor crime to take even a sip of an alcoholic drink in public, or to offer a drink to another person. A conviction carries a penalty of up to $250. This is a distinct and separate crime from being drunk in public, which is covered under Virginia Code §18.2-388, the state’s public intoxication statute.

It may be tempting to just pay the fine since there’s typically no jail time attached, but Virginia considers payment of the fine an admission of guilt.  If you pay a fine, you have a criminal record that may follow you for the rest of your life. An experienced alcohol attorney in Roanoke may be able to help you avoid that.

What is a public place?

Virginia Code §4.1-100 defines a public place as any place, building or conveyance where the public has access or is permitted to have access.  Public places include:

• Restaurants
• Hotel lobbies, corridors or dining rooms
• Parks
• Highways, streets, or sidewalks

The law excludes from the list of public places rooms in restaurants, hotels, offices, or industrial buildings where private meetings or parties are being held, and private or chartered boats where alcoholic beverages aren’t being sold.

Special Case for School Grounds
Drinking on school grounds comes with a more severe penalty of up to six months in jail and a $1,000 maximum fine. Virginia Code §4.1-309 makes it a crime to possess or drink any alcoholic beverage on the grounds of a public elementary or secondary school during school hours or activities.

The statute makes it a similar misdemeanor to drink or serve alcohol on school grounds outside of school hours or activities, but makes an exception for religious congregations using wine as part of a sacrament.

Exceptions when Drinking in Public

Virginia law makes an exception to the prohibition against drinking in public places for:

• Establishments licensed to sell alcohol when the license holder is selling the drinks and the alcoholic drink consumed or offered was bought in the licensed place
• Rooms or areas where the state’s Alcoholic Beverage Control Board has issued a banquet or mixed beverages special events license
• Events where a coliseum or stadium license was granted
• Chartered boats where passengers pay for transport as long as the boat isn’t selling alcohol without a license

Defenses for a Drinking in Public

When you’re charged with drinking in public, a prosecutor has to prove beyond a reasonable doubt:

• That you either took a drink from an alcoholic beverage, or offered a drink to someone else
• And that you did it in a public place.

If you can show either that you didn’t consume any alcohol or that the place was not in fact public, you may be able to avoid a conviction. An experienced criminal defense attorney can help you evaluate the evidence in your case and make a convincing argument to a judge.