California’s Open Container Laws and Takeout Orders

By San Diego Attorney on September 17, 2020

One of the many unexpected aspects of the COVID-19 outbreak is the unique changes to California’s laws. Several agencies have modified restrictions regarding marijuana deliveries to allow for social distancing, adjusted deadlines for filing for license renewals, and even changed regulations for alcohol use. In the latter case, the California Department of Alcohol Beverage Control (ABC) has allowed restaurants and bars to serve “takeout” alcoholic drink orders to any customer ordering a delivery or to-go order with a meal. This modification applies to both closed containers like prepackaged beer bottles or cans, as well as custom-made cocktails and delivery orders.

While these changes allow businesses to remain operational during the pandemic, customers should be aware of how it impacts drunk driving and open container laws in California.

What Are the Specific Changes?

Prior to the pandemic, restaurants, bars, and distilleries could only sell alcoholic beverages in manufactured containers such as bottles or cans for off-site consumption. Specialty cocktails and tap beer were prohibited from leaving the premises. However, based on new regulations from ABC, those restrictions have been temporarily suspended.

According to ABC, bars, restaurants, and any business that is licensed to sell alcohol may allow customers to purchase “beer, wine, and pre-mixed drinks or cocktails not in manufacturers containers for consumption off the licensed premises may do so when sold in conjunction with meals prepared for pick-up or delivery either by the licensee or by a meal provider.”

To put it in simpler terms, if you purchase a to-go meal at a restaurant, then you can also purchase an alcoholic beverage to go. What is considered a meal by the ABC is flexible to the establishment’s menu, but the organization does evaluate meals based on Business and Professions Code section 23038:

“’Meals’ means the usual assortment of foods commonly ordered at various hours of the day; the service of such food and victuals only as sandwiches or salads shall not be deemed a compliance with this requirement.”

In addition to these criteria, the organization does not consider the following items meals per their new regulations:

• Snacks
• Food ordinarily served as appetizers or first courses
• Side dishes
• Reheated refrigerated or frozen entrees
• Desserts

How Can You Transport Drinks?

With regards to the drinks themselves, restaurants and bars must serve a beverage in a “container with a secure lid or cap and in a manner designed to prevent consumption without removal of the lid or cap (e.g., no lids with sipping holes or openings for straws).” You are not allowed to remove a lid or cap to drink the beverage on public property, including the sidewalk outside the restaurant, or within your car.

Lastly, when transporting a beverage, it is considered an open container, meaning you can be charged with drinking while driving if an officer pulls you over and the beverage is in your cupholder. Instead, the ABC requires you to place the beverage in your vehicle’s trunk (or your Rideshare’s trunk) or, if you do not have a trunk, in the backseat.

Defending Against Takeout DUI Charges

Thus, so long as you follow these restrictions, an officer cannot charge you with an open carry violation or wet reckless. Traditionally, police will not charge you with a DUI unless you have a BAC of 0.08%. However, you should still be wary of DUI checkpoints and remember your right to protection from illegal searches and seizures.

If you are charged with a DUI, then you should immediately contact jD LAW at (760) 630-2000. Our founding San Diego DUI lawyer has more than 30 years of experience defending clients against DUI charges and can utilize all of his expertise and knowledge to have your charges reduced or dropped.