CRS § 42-4-1305 makes it a class A traffic infraction to consume (or to have open containers of) alcohol or marijuana in the passenger compartment of a vehicle while on Colorado public roads. The penalties include a $50 fine plus a surcharge of $16 for alcohol or $7.80 for marijuana.

If you are driving and found to be intoxicated, you could face criminal DUI charges as well.

In this article, our Denver Colorado criminal defense lawyers will address:

• 1. What is the “open container” law?
• 2. What are the exceptions?
• 3. How does the prosecutor prove I am guilty?
• 4. What are the penalties for an open container?
• 5. Can you walk with an open container in Colorado?
• 6. Related Offenses

1. What is the “open container” law?

In Colorado, it is illegal to drive or otherwise be in the passenger area of a motor vehicle while knowingly:

1. consuming alcohol or marijuana or
2. having open containers of alcohol or marijuana in your possession.

Consumption of alcohol or marijuana while in the vehicle is illegal, even if you are not driving or impaired.

CRS 42-4-1305 defines “open alcoholic beverage container” as “a bottle, can, or receptacle that contains any amount of alcoholic beverage and:

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

How is “alcoholic beverage” defined?

An alcoholic beverage includes

• beer,
• cider,
• malt liquor,
• sake,
• wine,
• distilled spirits, or
• similar fermented beverages containing 0.05% alcohol or more by volume.²

Even if the booze was consumed in a legal location, such as a restaurant or at home, the uncorked or unsealed bottle cannot be transported in the passenger area of the vehicle. An open alcohol container should be stored in an inaccessible area, such as the trunk of a car.

How is “open container of marijuana” defined?

Meanwhile, CRS 42-4-1305.5 defines an “open marijuana container” as “a bottle, can, or receptacle or marijuana accessory that contains any amount of marijuana and:

• That is open or has a broken seal; or
• The contents of which are partially removed; and
• There is evidence that marijuana has been consumed in the vehicle.”³

Therefore, driving with an open canister of marijuana does not violate Colorado law unless there is evidence that it has been

• smoked,
• inhaled,
• eaten, or
• otherwise consumed in the car.

This is different from open alcohol container laws – you can be cited even if there is no evidence that any alcohol was drunk. (Learn more about using marijuana or having possession of an open marijuana container (CRS 42-4-1305.5))

How is “passenger area” defined?

The “passenger area” is the area of a vehicle designed to seat the driver and passengers. This includes any area readily accessible to the driver or passenger, including the front seat, back seat, glove compartment, under the seat, side door compartments, or seat-back pockets.

2. What are the exceptions?

There are a number of exceptions to Colorado open container laws. Specifically, the penalties do not apply to:

• Passengers in a vehicle used for transportation for compensation, such as a taxi or bus;
• Possession in the living quarters of a motor home, house coach, or house trailer; or
• Possession in a contained area not normally occupied by a passenger, such as behind the last rear seat of a pickup truck

However, many taxi and bus companies prohibit drinking in their vehicles. Plus it is always unlawful to consume marijuana outside a private residence, so if you are caught with marijuana in a taxi or bus, you could face possession charges.

3. How does the prosecutor prove I am guilty?

Possession of open containers of alcohol or marijuana in vehicles is not a criminal offense in Colorado. Instead, it is a traffic infraction, punishable by a simple fine.

Traffic infractions have a lower burden of proof compared to criminal charges. The prosecutor only has to prove that you are guilty by a preponderance of the evidence. Specifically, prosecutors have to show that:

1. You were in the passenger area of a motor vehicle;
2. The car was on a public highway or the right-of-way of a public highway in Colorado;
3. You drank an alcoholic beverage, consumed marijuana, or possessed an open alcoholic beverage or marijuana container; and
4. There was evidence of consumption (only in marijuana cases).

4. What are the penalties for an open container?

Consuming or having an open alcohol or marijuana container in a vehicle is a class A traffic infraction in Colorado, carrying a $50 fine. There is a $16 surcharge in alcohol cases, and a $7.80 surcharge in marijuana cases.⁴

Note that police typically suspect that you are driving under the influence if you have an open container, even if the police did not personally witness you smoking weed or drinking alcohol. During a DUI investigation, police may ask you to perform field sobriety tests and blow into a breathalyzer. Unlike open container violations, DUI is a crime carrying serious penalties, including a driver’s license suspension.

5. Can I walk with an open container in Colorado?

Walking with open containers of alcohol is largely illegal in Colorado, but there are exceptions carved out by local law. It is always illegal to walk with an open container of any amount of marijuana.

Some cities are passing common consumption ordinances, which allow you to gather in certain areas and drink alcohol from cups that came from different, nearby establishments. Check your local laws for the latest development on if and where public drinking is allowed.⁵

See our related article, Can you get an open container in Colorado while walking?

6. Related Offenses

CRS 42-4-1301 DUI (or DWAI)

Drunk driving or drugged driving is a criminal offense under CRS 42-4-1301. The penalties for driving under the influence of alcohol or marijuana include jail time, fines, a suspended license, and increased insurance costs. Colorado DUI and open container crimes are separate offenses.

CRS 18-13-122 Minor in Possession of Alcohol

In Colorado, it is a petty offense for anyone under 21 to possess or consume an alcoholic beverage. A first offense can result in a fine of up to $100 and require completion of a substance abuse education program approved by the state. A second or subsequent offense can result in increased penalties.

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Legal References