Learn More About the DUI Open Containers Enhancement

“Alcoholic Beverage” = According to CVC §109, it includes “any liquid or solid material intended to be ingested by a person which contains ethanol....” However, Bobus v. DMV (2004) 125 Cal.App.4th 680, declined an opportunity to find that the legislature actually intended this broad definition to apply to the open container statutes. Id., at 685. The appellant in Bobuspointed out that under this literal interpretation, a person could be found in violation of the open container laws for having an unsealed bottle of cough syrup in their car.

“Driver” = “[A] person who drives or is in actual physical control of a vehicle.” CVC § 305. Note that volitional movement of a motor vehicle is not required for this offense. Cf., Mercer v. DMV (1991) 53 Cal.3d 753 (volitional movement required for drunk driving offense).

“Driving” = Not specifically defined. See definition for “driver” above.

“Highway” = “[A] way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel.” CVC §360.

“Lands” = “those lands to which the Chappie-Z’berg Off-Highway Motor Vehicle Law of 1971 (Division 16.5 (commencing with Section 38000)) applies as to off-highway motor vehicles, as described in Section 38001.” CVC § 23220(b). CVC § 38001 reads as follows:

(a) Except as otherwise provided, this division applies to off-highway motor vehicles, as defined in Section 38006, on lands, other than a highway, which are open and accessible to the public, including any land acquired, developed, operated, or maintained, in whole or in part, with money from the Off-Highway Vehicle Fund, except private lands under the immediate control of the owner or his agent where permission is required and has been granted to operate a motor vehicle. For purposes of this division, the term “highway” does not include fire trails, logging roads, service roads regardless of surface composition, or other roughly graded trails and roads upon which vehicular travel by the public is permitted.

(b) Privately owned and maintained parking facilities that are generally open to the public are exempt from this division, unless the facilities are specifically declared subject to this division by the procedure specified in Section 21107.8.

That’s a confusing and seemingly incomprehensible mouthful to say the least; but let’s see if we can give it some meaning.

First off, we notice that the language which refers to off-highway vehicles is irrelevant to our consideration, so we can eliminate it.

We also notice the phrase:

...including any land acquired, developed, operated, or maintained, in whole or in part, with money from the Off-Highway Vehicle Fund, except private lands under the immediate control of the owner or his agent where permission is required and has been granted to operate a motor vehicle....

This is redundant since everything described in it is already included or excluded from the coverage of the statute by the phrase:

...lands, other than a highway, which are open and accessible to the public....

We can eliminate it too.

Also, since we are already talking about lands other than a “highway” that are nevertheless included in the specified open container laws, we can eliminate that phrase from the language we use to describe the additional lands those statutes cover.

Similarly, we can eliminate the second sentence of subdivision (a), since it merely states an exception to the “lands other than a highway” that we have excluded from consideration.

After eliminating all the unnecessary language we are left with:

Lands which are open and accessible to the public, unless they are a privately owned and maintained parking facility.

And that is which lands, other than a “highway”, that are added to the specified open container laws. So now, when one is considering popping the top on a cool one, one must determine not only that the property is privately owned, but that it is also not open to the public.