Will Brown-Bagging My Drink Protect Me from Open Container Charges?

With the exceptions of several cities around the United States such as Las Vegas and New Orleans, drinking in public places is usually illegal.

However, despite the iconic brown paper bag many people will wrap around their drink before sallying forth onto the sidewalk, the flimsy paper covering actually does little to nothing to shield a person from being ticketed for carrying an open container in a public place in North Carolina. In fact, any practical advantages to camouflaging your imbibing can actually work in reverse, alerting law enforcement that you’re trying to get away with the obvious.

An underage person caught drinking in public can additionally be ticketed for underage consumption.

North Carolina has open container laws that apply to both motor vehicles as well as public places. You can learn more about open container charges in motor vehicles in the DWI/DUI portions of our website. Open container charges that do not involve a motor vehicle, however, are aimed at public spaces such as sidewalks and retail establishments.

The Alcohol and Beverage Control (ABC) Commission of North Carolina provides the laws that surround the possession, sale and consumption of alcohol within this state. The open container laws are addressed according to what type of alcohol is involved.

• Malt beverages: Beer, lager, malt liquor, porter, or any other fermented or brewed beverage that is not wine but is between 0.5% and 15% alcohol by volume.

• Unfortified wine: Wine that is 16% or less alcohol by volume.

• Fortified wine: Wine that is more than 16% alcohol by volume but no more than 24% ABV. It is usually fortified by adding distilled liquor such as brandy. Examples of fortified wine include port, sherry and vermouth.

• Spirituous liquor/mixed drinks: Distilled spirits or ethyl alcohol, including wine that is more than 24%, rum, brandy, whiskey and all other mixed cordials, liqueurs and premixed cocktails sold in closed containers.

In North Carolina, consumption or possession of an open container of malt beverage or unfortified wine is left to be regulated by local city or county ordinances. The city of Charlotte, North Carolina has indeed regulated this behavior: Section 15-3 of our city’s Code of Ordinances make it illegal to possess an open container of or consume malt beverages or wine in public streets, sidewalks or train platform. Ordinance violations are equivalent to a Class 3 misdemeanor here.

Meanwhile, the ABC Commission’s statewide law regulates the possession of open containers of or consumption of fortified wine and liquor/mixed drinks. N.C.G.S. 18B-300 sets out specific places where a person can possess and consume these types of alcohol. A person who is of legal drinking age can possess or consume any amount of fortified wine or liquor in their own home or residence. If it is on another person’s property, the person can possess for personal use and use of guests up to eight (8) liters of fortified wine or liquor if they have the property owner’s consent and the property is not primarily used for commercial purposes or currently open to the public. This is also permitted at commercial establishments that have a “brown-bagging” permit through the ABC Commission that permits guests to bring their own alcohol. Fortified wine and liquor is also legal if you are carrying (but not consuming) it after buying it while transporting it to one of the aforementioned places.

Open containers of fortified wine and liquor are not permitted in places besides those mentioned above. This means they are not legal in places such as public sidewalks statewide. Violation of the fortified wine and liquor laws is a Class 1 misdemeanor in North Carolina, a more serious offense than a Class 3.

While it is true that in some states, liquor stores are required to cover alcohol that they sell, North Carolina is not one of them. Clerks and customers alike here are frequently confused as to whether the individual wrappings on alcohol purchases are a legal requirement or mere store policy—for example, many of the Alcoholic Beverage Control stores throughout the state have brown bag policies in place as a proof of purchase notice to store employees, as well as a nod to customer privacy.

Despite this, many store clerks and customers adhere to the old myth that brown bags are 1) required by any state or local law to carry alcohol purchases outside, and 2) that the brown bag diminishes criminal liability.

Some states such as California actually charge extra for bags now, while some counties and cities have altogether banned the use of plastic bags by all retailers, including Hyde, Currituck and Dare counties in coastal North Carolina.

If you are facing open container or other alcohol charges, it is important to speak with an experienced criminal defense attorney right away to best defend your rights. Even misdemeanor offenses can haunt a person for years to come and have a significant impact on his or her life. Arnold & Smith, PLLC is an aggressive criminal defense and civil litigation firm with years of experience in defending individuals from DWI/DUI and other alcohol-related charges in Charlotte, North Carolina. Please contact us as soon as possible for a consultation about your case.