Things That Weren’t On the Virginia Bar Exam

Somehow, I have lived in D.C. for the past three and half years, and yet remained unaware until now that Virginia is one of those few U.S. states without an open container law.

The National Highway Traffic Safety Administration (NHTSA) withholds funding from states that do not comply with federally “suggested” scheme in the Transportation Equity Act for the 21st Century, which would prohibit any open alcoholic containers in a moving vehicle. (Note: TEA-21 did have the foresight to exclude Drunk Buses from this prohibition. Bachelor/ette parties everywhere remain thankful.)

Currently, only eight states lack state-level open container laws. In addition to Virginia, they are: Arkansas, Connecticut, Delaware, Mississippi, Missouri, Tennessee, and West Virginia. But note that Mississippi takes it a step further — so long as they stay below the legal BAC limit, even the driver is allowed to drink.

That being said, having an open alcoholic beverage in a car in Virginia is still a very poor idea, and I would very strongly recommend against it. First, sub-state laws may say something entirely different, so don’t rely on the state code. Second, Virginia has a rebuttable presumption scheme not favorable to open containers:

§ 18.2-323.1. Drinking while operating a motor vehicle; possession of open container while operating a motor vehicle and presumption; penalty.

A. It shall be unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of this Commonwealth.

B. A rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open container has been at least partially removed and (iii) the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage.

Any cop that spots an open alcoholic beverage during a traffic stop is going to use that as an excuse for a more invasive search. And you just know that no cop out there will have a problem concluding that there is something about the driver of a vehicle that is “reasonably associated” with the consumption of alcohol.

Question, though. What about jello shots? Do those qualify as an “alcoholic beverage“?