Open Alcoholic Beverage Containers

As our pandemic subsides (hopefully), more and more people will be going out to restaurants or social gatherings. At these locations, some will order alcoholic beverages and intend to take them home. New laws passed during the pandemic may have changed how some alcoholic beverages travel home. However, the original laws regarding an open alcoholic beverage container still apply.   

The beverage could be a beer, ale, wine or distilled spirit that contains at least one-half (1/2) of one (1%) percent, or point zero-five (.05%) percent, or more, of alcohol by volume. For the purpose of the law, an open container can mean any bottle, can or other receptacle that contains any amount of alcoholic beverage. If the container is open, or has a broken seal, or the contents of which are partially removed, then it is considered an open alcoholic beverage. However, there are separate rules that are applicable when purchasing wine to take home from a restaurant.  

 

A restaurant may permit a patron of the restaurant to remove one (1) opened container of wine if the patron purchased, and partially consumed, the wine while enjoying a meal on the restaurant’s premises. In this situation, the wine bottle shall be securely resealed by the restaurant licensee, or its employee, before the bottle can be removed from the restaurant’s premises. The partially consumed wine bottle must be placed in a bag, or other container, that is secured in a manner that makes it visibly apparent if the container has been opened, or tampered with, after leaving the premises of the restaurant. With the bag, or container, the restaurant licensee shall provide a dated receipt with the wine bottle. Not following these instructions, and deviating even slightly, could result in a person being charged with possessing an open alcoholic beverage container while in a motor vehicle. 

 

A person is guilty of possessing an open alcoholic beverage container in a motor vehicle when they have an open alcoholic beverage container in the passenger area of a motor vehicle when said vehicles is on a public highway or on the right-of-way to a public highway. The passenger area is defined as the area where the driver or passengers can be seated while the motor vehicle is in operation or any area that is readily accessible to the driver or passenger while in a seated position. There are some limitations to this. A locked glove compartment, the trunk of the vehicle or behind the last upright seat in a vehicle not equipped with a trunk are places not considered passenger areas.  

 

These laws do not apply to situations in which the person drinking the alcoholic beverage is strictly a passenger and not the driver of the vehicle in specific vehicles that are used for the transportation of persons for compensation. Such vehicles are buses, taxis, and limousines, or in a recreational vehicle, motor home or motor coach. For example, if a limousine is rented for an outing into the town, and a person in the passenger area strictly stays in that area and opens an alcoholic container, then they will not be charged with possession of open alcoholic beverage container while in a motor vehicle.  

 

During the pandemic, the Kentucky legislature enacted a new set of laws that allow restaurants to sell alcohol for delivery, to-go or for take-out. If a restaurant, or other license holder, wishes to sell alcohol on a delivery, to-go or on a take-out basis, they must do so by putting the drink in a sealed container. The sealed container must be secured in a manner that makes it apparent if the container has been open or tampered with. When making the delivery, or carrying the container within a vehicle, it must be placed in an area that is not considered a passenger area, as described above. The customer must also have purchased a prepared meal with the alcohol. The amount of alcohol must be considered reasonable in relation to the meal purchased. The delivery must be made in a vehicle operated and owned by the licensee, their employee or an independent contractor. The driver must also be at least the age of twenty-one (21). The recipient of the delivery must be the age of at least twenty-one (21) and not be intoxicated. The licensee must not sell the alcohol in bulk quantities or sell the alcohol in any dry territory.  

 

A person who is charged with possessing an open alcoholic beverage in a motor vehicle risks receiving a fine that can be from thirty-five ($35) dollars to one hundred ($100) dollars. Even if a person is not charged with possession of an open alcoholic beverage container while in a motor vehicle, there is still the chance to be charged with consuming alcoholic beverages in a public place or public intoxication. A person is considered guilty of drinking alcoholic beverages in a public place when that person chooses to drink an alcoholic beverage in a public place. A public place is defined as an area where the public or a substantial group of individuals have access. If this is the first or second offense, then there could be a fine of no less than twenty-five ($25) dollars. If this is the third, or subsequent, offense within a twelve (12) month period, that person could be fined no less than twenty-five ($25) dollars nor more than one-hundred ($100) dollars or an imprisonment in the county jail for no less than five (5) days nor more than ninety (90) days.  

             

Public intoxication is when a person appears in a public place while under the influence of a controlled substance, or a controlled substance and alcohol, to a degree in which they may present a danger to themselves or others within the vicinity. Being convicted of public intoxication is a Class B misdemeanor which could carry a fine of no more than two hundred-fifty ($250) dollars and imprisonment of up to ninety (90) days in jail. A prosecutor must elect whether to charge a person under possession of an alcoholic beverage container, consuming alcoholic beverages in a public place or public intoxication but not all three.   

             

I hope you have found this information helpful.  If you have any topics you would like to have covered in this column, please contact my office by e-mail at countyattorney@campbellcountyky.gov, by phone at 491-7700 or by regular mail addressed to 319 York Street, Newport, Kentucky 41071.

2013 © Steven J. Franzen. All Rights Reserved.