Open Container

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Colorado’s Open Container law does not criminalize impaired driving directly, but it does criminalize an activity that could lead to impaired driving or that is often closely associated with impaired driving. It is very commonly charged with impaired driving charges and, when those charges are not possible to prove, it sometimes remains the only available charge.

In Colorado, there are two open container laws:

      1. Open Alcoholic Beverage Container, § 42-4-1305
      2. Open Marijuana Container,  § 42-4-1305.5

Both prohibit a driver or a front seat passenger from possessing an open container of an alcoholic beverage or marijuana in a motor vehicle while on a state road or highway.

Open Marijuana Container

A person commits the crime of Open Marijuana Container, a class A traffic infraction, when:

      1. A person,
      2. while in the passenger area of a motor vehicle,
      3. that is on a public highway of this state or the right-of-way of a public highway of this state,
      4. knowingly,
      5. uses or consumes marijuana or has in their possession an open marijuana container.

§ 42-4-1305.5(2)(a).

An “open container” means “a receptacle or marijuana accessory that contains any amount of marijuana and”

      1. That is open or has a broken seal;
      2. The contents of which are partially removed; and

There is evidence that marijuana has been consumed within the motor vehicle.

§ 42-4-1305.5(1)(c).

Open Alcoholic Beverage Container

Colorado’s Open Alcoholic Beverage Container law is almost identical to its Open Marijuana Container law.

A person commits the crime of Open Alcoholic Beverage Container, a class A traffic infraction, when:

      1. A person,
      2. while in the passenger area of a motor vehicle,
      3. that is on a public highway of this state or the right-of-way of a public highway of this state,
      4. knowingly,
      5. drinks an alcoholic beverage or has in their possession an open alcoholic beverage container.

§ 42-4-1305(2)(a).

An open alcoholic beverage container means “a bottle, can, or other receptacle that contains any amount of alcoholic beverage” that “is open or has a broken seal” or “the contents of which are partially removed.” § 42-4-1305(1)(c).

Exceptions

Both open container laws include the following exceptions:

      1. Passengers, other than the driver or a front seat passenger, located in the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation;
      2. The possession by a passenger, other than the driver or a front seat passenger, of an open container in the living quarters of a house coach, house trailer, motor home, trailer coach;
      3. The possession of an open container in the area behind the last upright seat of a motor vehicle that is not equipped with a trunk; or
      4. The possession of an open container in an area not normally occupied by the driver or a passenger in a motor vehicle that is not equipped with a trunk.

§§ 42-4-1305(2)(b), 42-4-1305.5(2)(b).

Given this list, common examples of exceptions might include:

      • Taxi passengers in the back seat
      • Ride share passengers in the back seat
      • Bedroom of an RV
      • Campers
      • Behind the last seat in a truck

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