Open Container

Issue Brief accepted by the Coalition on 11/10/16

Open Container Law Issue Brief

Open Container Policy Statement

Tenn. Code Ann. § 55-10-416 (2016)

55-10-416. Open container law.

(a) (1) No driver shall consume any alcoholic beverage or beer or possess an open container of alcoholic beverage or beer while operating a motor vehicle in this state.

(2) For purposes of this section:

(A) "Open container" means any container containing alcoholic beverages or beer, the contents of which are immediately capable of being consumed or the seal of which has been broken;

(B) An open container is in the possession of the driver when it is not in the possession of any passenger and is not located in a closed glove compartment, trunk or other nonpassenger area of the vehicle; and

(C) A motor vehicle is in operation if its engine is operating, whether or not the motor vehicle is moving.

(b) (1) A violation of this section is a Class C misdemeanor, punishable by fine only.

(2) For a violation of this section, a law enforcement officer shall issue a citation in lieu of continued custody, unless the offender refuses to sign and accept the citation, as provided in § 40-7-118.

(c) This section shall not be construed to prohibit any municipality, by ordinance, or any county, by resolution, from prohibiting the passengers in a motor vehicle from consuming or possessing an alcoholic beverage or beer in an open container during the operation of the vehicle by its driver, or be construed to limit the penalties authorized by law for violation of the ordinance or resolution.

www.lexisnexis.com/hottopics/tncode/

Open Container Law Conformance Criteria

The regulations resulting from the TEA-21 Restoration Act specify six elements that state Open Container laws must include to conform to the Federal Standard and to enable a state to avoid the transfer of Federal-aid highway construction funds.* The required elements are described in the following paragraphs.5

To fully conform to the federal requirements, an Open Container law must...

1. Prohibit possession of any open alcoholic beverage container and the consumption of any alcoholic beverage in a motor vehicle.

2. Specify the passenger area of any motor vehicle.

3. Apply to all alcoholic beverages.

4. Apply to all occupants.

5. Specify on a public highway or the right-of-way of a public highway.

6. Specify primary enforcement.

http://www.nhtsa.gov/people/injury/research/opencontainer/open_container_criteria.htm

*§ 1270.6 Transfer of funds.

(a) On October 1, 2000, and October 1, 2001, if a State does not have in effect or is not enforcing the law described in § 1270.4, the Secretary shall transfer an amount equal to 1 1/2 percent of the funds apportioned to the State for that fiscal year under each of 23 U.S.C. 104(b)(1), (b)(3), and (b)(4) to the apportionment of the State under23 U.S.C. 402.

(b) On October 1, 2002, and each October 1 thereafter, if a State does not have in effect or is not enforcing the law described in § 1270.4, the Secretary shall transfer an amount equal to 3 percent of the funds apportioned to the State for that fiscal year under each of 23 U.S.C. 104(b)(1), (b)(3), and (b)(4) to the apportionment of the State under 23 U.S.C. 402.

(c) On October 1, the transfers to Section 402 apportionments will be made based on proportionate amounts from each of the apportionments under Sections 104(b)(1), (b)(3) and (b)(4). Then the State's Department of Transportation will be given until October 30 to notify FHWA, through the appropriate Division Administrator, if they would like to change the distribution among Section 104(b)(1), (b)(3) and (b)(4).

https://www.law.cornell.edu/cfr/text/23/1270.6

§ 1270.7 Use of transferred funds.

(a) Any funds transferred under § 1270.6 may:

(1) Be used for approved projects for alcohol-impaired driving countermeasures; or

(2) Be directed to State and local law enforcement agencies for enforcement of laws prohibiting driving while intoxicated or driving under the influence and other related laws (including regulations), including the purchase of equipment, the training of officers, and the use of additional personnel for specific alcohol-impaired driving countermeasures, dedicated to enforcement of the laws (including regulations).

(b) States may elect to use all or a portion of the transferred funds for hazard elimination activities eligible under 23 U.S.C. 152.

(c) No later than 60 days after the funds are transferred under § 1270.6, the Governor's Representative for Highway Safety and the Secretary of the State's Department of Transportation for each State shall jointly identify, in writing to the appropriate NHTSA Administrator and FHWA Division Administrator, how the funds will be programmed among alcohol-impaired driving programs, hazard elimination programs and planning and administration costs.

(d) The Federal share of the cost of any project carried out with the funds transferred under § 1270.6 of this part shall be 100 percent.

(e) The amount to be transferred under § 1270.6 of this part may be derived from one or more of the following:

(1) The apportionment of the State under § 104(b)(1);

(2) The apportionment of the State under § 104(b)(3); or

(3) The apportionment of the State under § 104(b)(4).

(f)

(1) If any funds are transferred under § 1270.6 of this part to the apportionment of a State under Section 402 for a fiscal year, an amount, determined under paragraph (e)(2) of this section, of obligation authority will be distributed for the fiscal year to the Statefor Federal-aid highways and highway safety construction programs for carrying out projects under Section 402.

(2) The amount of obligation authority referred to in paragraph (e)(1) of this section shall be determined by multiplying:

(i) The amount of funds transferred under § 1270.6 of this part to the apportionment of the State under Section 402 for the fiscal year; by

(ii) The ratio that:

(A) The amount of obligation authority distributed for the fiscal year to the State for Federal-aid highways and highway safety construction programs; bears to

(B) The total of the sums apportioned to the State for Federal-aid highways and highway safety construction programs (excluding sums not subject to any obligation limitation) for the fiscal year.

(g) Notwithstanding any other provision of law, no limitation on the total obligations for highway safety programs under Section 402 shall apply to funds transferred under § 1270.6 to the apportionment of a State under such section.

Discussion of topic from Minutes of Steering Committee:

A position on the Open Container Bill: Discussion around the proposed law, introduced by Rep. Lunsburg and voted against (in committee) by Rep. Hulsey because of funding would go to TDOT rather than the Highway Safety Program. Proposed to do more research and study the issue to be able to develop a position for coalition. Links to more information:

http://www.ghsa.org/html/stateinfo/programs/154.html

http://www.ghsa.org/html/stateinfo/programs/402.html

Currently local law enforcement gets money from the state to pay for the overtime associated with DUI patrol saturation. If the open container law passes, that money would no longer automatically go to the Highway Safety Fund and could impact local departments.

Legislative argument against is "the liberty of the person in the back seat of the car who wants to finish their glass of wine." See video at http://tnga.granicus.com/MediaPlayer.php?view_id=278&clip_id=12019&meta_id=245379

Countermeasures That Work.pdf

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