Va. Code » Title 18.2. Crimes and Offenses Generally » Chapter 7. Crimes Involving Health and Safety » Article 8. Miscellaneous Dangerous Conduct
Virginia Code

Va. Code Ann. § 18.2-323.1 (2026)

Drinking while operating a motor vehicle; possession of open container while operating a motor vehicle and presumption; penalty

✓ current as of May 2026
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A. It is unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of the Commonwealth.

B. Unless the driver is delivering alcoholic beverages in accordance with the provisions of § 4.1-212.1, 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.

C. For the purposes of this section:

"Open container" means any vessel containing an alcoholic beverage, except the originally sealed manufacturer's container.

"Passenger area" means the area designed to seat the driver of any motor vehicle, any area within the reach of the driver, including an unlocked glove compartment, and the area designed to seat passengers. "Passenger area" does not include the trunk of any passenger vehicle, the area behind the last upright seat of a passenger van, station wagon, hatchback, sport utility vehicle, or any similar vehicle, the living quarters of a motor home, or the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxi, or limousine, while engaged in the transportation of such persons.

D. A violation of this section is punishable as a Class 4 misdemeanor.

1989, c. 343; 2002, c. 890; 2022, cc. 78, 79.

Notes of Decisions
Cited in 11 cases (5 in the last 5 years), 2000–2024 · leading case: United States v. Washington, 439 F. Supp. 2d 589 (E.D. Va. 2006).
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United States v. Washington, 439 F. Supp. 2d 589 (E.D. Va. 2006). · cites it 11× “Va.Code § 18.2-323.1. For purposes of this statute, the phrase "open container" is defined as "any vessel containing an alcoholic beverage, except the originally sealed manufacturer's container.”
Justin Sarafin v. Commonwealth of Virginia, 748 S.E.2d 641 (Va. Ct. App. 2013). · cites it 2× “2 (implied consent statute) and Code § 18.2-323.1 (consuming an alcoholic beverage while driving).”
United States v. Washington, 439 F. Supp. 2d 589 (E.D. Va. 2006). · cites it 11× “Accordingly, given that Officer Koenigs-berg had reasonable suspicion to believe that additional criminal activity was afoot beyond the traffic violations forming the basis of the initial vehicle stop, namely a violation of Va.”
Nakia Durham v. Commonwealth of Virginia (Va. Ct. App. 2023). · cites it 27× “He also argues for the first time on appeal that Officer Labat was unreasonably mistaken as to what conduct Code § 18.2-323.1 proscribes—namely, that this statute proscribes drinking while driving as opposed to having an open container of alcohol in the vehicle.”
Commonwealth of Virginia v. Bobby Eugene Branch (Va. Ct. App. 2022). · cites it 16× “Branch argues the open container alone did not establish probable cause because Code § 18.2-323.”
United States v. Mardell Johnson, 689 F. App'x 214 (4th Cir. 2017). “Given that Johnson had driven the vehicle in the dark without the aid of headlights or taillights, the officer, we conclude, had probable cause to retrieve the vodka bottle and search the vehicle for evidence of a violation of Va. Code Ann. § 18.2-323.1 (A) (LexisNexis 2014),…”
Desmond Lamonte McEachin v. Commonwealth of Virginia (Va. Ct. App. 2023). · cites it 14× “”4 Accordingly, the circuit court found that the police had probable cause to search for evidence of a violation of Code § 18.2-323.1, which prohibits drinking on a public highway, and denied McEachin’s motion to suppress.”
Richetta Veronique Hammonds v. Commonwealth of Virginia (Va. Ct. App. 2024). · cites it 10× “Following a jury trial, Richetta Veronique Hammonds (“Hammonds”) appeals from her convictions in the Circuit Court of Arlington County (“trial court”) for drinking while driving, driving while intoxicated, and following too closely, in violation of Code §§ 18.2-323.1, 18.2-266,…”
Eric Dominique Taylor Lynch v. Commonwealth of Virginia (Va. Ct. App. 2022). · cites it 2× “” Code § 18.2-323.1(A). So the conclusion that he was consuming alcohol while driving is now the “law of the case.”
Daitrone Lamar Hargrove v. Commonwealth of Virginia (Va. Ct. App. 2000). · cites it 2× “1 Any person under twenty-one operating a motor vehicle after consuming alcohol; Code § 18.2-323.1 Consuming an alcoholic beverage while driving; or Code § 4.”
Antoine Harvey Squire v. Commonwealth of Virginia (Va. Ct. App. 2000). · cites it 2× “1 Any person under twenty-one operating a motor vehicle after consuming alcohol; Code § 18.2-323.1 Consuming an alcoholic beverage while driving; or Code § 4.”
— Va. Code Ann. § 18.2-323.1(A) — 3 cases
Nakia Durham v. Commonwealth of Virginia (Va. Ct. App. 2023). “He also argues for the first time on appeal that Officer Labat was unreasonably mistaken as to what conduct Code § 18.2-323.1 proscribes—namely, that this statute proscribes drinking while driving as opposed to having an open container of alcohol in the vehicle.”
Eric Dominique Taylor Lynch v. Commonwealth of Virginia (Va. Ct. App. 2022). “” Code § 18.2-323.1(A). So the conclusion that he was consuming alcohol while driving is now the “law of the case.”
Richetta Veronique Hammonds v. Commonwealth of Virginia (Va. Ct. App. 2024). “Following a jury trial, Richetta Veronique Hammonds (“Hammonds”) appeals from her convictions in the Circuit Court of Arlington County (“trial court”) for drinking while driving, driving while intoxicated, and following too closely, in violation of Code §§ 18.2-323.1, 18.2-266,…”
— Va. Code Ann. § 18.2-323.1(B) — 6 cases
United States v. Washington, 439 F. Supp. 2d 589 (E.D. Va. 2006). “Va.Code § 18.2-323.1. For purposes of this statute, the phrase "open container" is defined as "any vessel containing an alcoholic beverage, except the originally sealed manufacturer's container.”
Nakia Durham v. Commonwealth of Virginia (Va. Ct. App. 2023). “He also argues for the first time on appeal that Officer Labat was unreasonably mistaken as to what conduct Code § 18.2-323.1 proscribes—namely, that this statute proscribes drinking while driving as opposed to having an open container of alcohol in the vehicle.”
United States v. Washington, 439 F. Supp. 2d 589 (E.D. Va. 2006). “Accordingly, given that Officer Koenigs-berg had reasonable suspicion to believe that additional criminal activity was afoot beyond the traffic violations forming the basis of the initial vehicle stop, namely a violation of Va.”
Commonwealth of Virginia v. Bobby Eugene Branch (Va. Ct. App. 2022). “Branch argues the open container alone did not establish probable cause because Code § 18.2-323.”
Desmond Lamonte McEachin v. Commonwealth of Virginia (Va. Ct. App. 2023). “”4 Accordingly, the circuit court found that the police had probable cause to search for evidence of a violation of Code § 18.2-323.1, which prohibits drinking on a public highway, and denied McEachin’s motion to suppress.”
— Va. Code Ann. § 18.2-323.1(B)(ii) — 1 case
Nakia Durham v. Commonwealth of Virginia (Va. Ct. App. 2023). “He also argues for the first time on appeal that Officer Labat was unreasonably mistaken as to what conduct Code § 18.2-323.1 proscribes—namely, that this statute proscribes drinking while driving as opposed to having an open container of alcohol in the vehicle.”
— Va. Code Ann. § 18.2-323.1(B)(iii) — 1 case
Nakia Durham v. Commonwealth of Virginia (Va. Ct. App. 2023). “He also argues for the first time on appeal that Officer Labat was unreasonably mistaken as to what conduct Code § 18.2-323.1 proscribes—namely, that this statute proscribes drinking while driving as opposed to having an open container of alcohol in the vehicle.”
— Va. Code Ann. § 18.2-323.1(C) — 2 cases
Nakia Durham v. Commonwealth of Virginia (Va. Ct. App. 2023). “He also argues for the first time on appeal that Officer Labat was unreasonably mistaken as to what conduct Code § 18.2-323.1 proscribes—namely, that this statute proscribes drinking while driving as opposed to having an open container of alcohol in the vehicle.”
Desmond Lamonte McEachin v. Commonwealth of Virginia (Va. Ct. App. 2023). “”4 Accordingly, the circuit court found that the police had probable cause to search for evidence of a violation of Code § 18.2-323.1, which prohibits drinking on a public highway, and denied McEachin’s motion to suppress.”
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