What to Know Abut DUI Investigations and Vehicle Searches in Virginia

It's Thanksgiving time, and with that comes the big Thanksgiving celebrations and dinners complete with alcoholic beverages. And from house to house, a person may bring a bottle of whiskey or wine – they may even bring an open bottle because in Virginia, under certain conditions, you can carry open bottles of alcohol in a vehicle. So, you bring that special bottle of scotch – already opened – to share during the football game. Or, imagine this: you finish dinner, there's still wine left in the bottle, and your host offers it to you to take home and enjoy as a nightcap. Why not? It's all perfectly legal.

The problem, however, is the police. They are going to be out in large numbers throughout Charlottesville and elsewhere in Virginia. Speeding or improper lane changes and the like can get you pulled over. Once you are stopped, the police may become suspicious that you have been drinking and driving, depending on the circumstances.

Plus, keep in mind, the police are eager at this time of the month to make arrests: not only is it Thanksgiving, but it's the end of the month. And not only will they conduct a DUI investigation, but they may attempt to search your vehicle, and vehicle searches are an exception to the normal protections provided under the Fourth Amendment to the United States Constitution.

Here's what you should know about DUI investigations and vehicle searches during Thanksgiving or any other time of the year in Virginia.

When Are Vehicle Searches Allowed Without A Warrant During DUI Investigation in Virginia?

From one U.S. Supreme Court case to another, the privacy rights of persons driving the vehicles have been diminished. In the 1970s, the U.S. Supreme Court found that:

''One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. . . . It travels public thoroughfares where both its occupants and its contents are in plain view.'' Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality opinion), quoted in United States v. Chadwick, 433 U.S. 1, 12 (1977).

But the catch is this: you still have an expectation of privacy, so the police officer cannot at his or her whim perform searches and seizures without consent and without a warrant. But the officer can if there is probable cause to search. For example, if the officer:

• sees an open container on or near the passenger seat;

• sees other contraband in plain sight; or

• smells alcohol or drugs in the vehicle

then the officer can search the vehicle.

But also, if the officer conducted a DUI investigation and finds probable cause to arrest you for drinking and driving, your vehicle can be searched incident to an arrest and/or as an inventory search if the car is impounded.

So, though generally speaking, you have the right to privacy and should be free from unconstitutional searches and seizures, privacy rights are reduced when pulled over for a traffic stop. Don't give the officer a reason to suspect you have had a drink by leaving the open bottle within reach and within sight.

How Should You Carry Open Bottles of Alcohol in Virginia?

Virginia's open container law sometimes presents a rebuttable presumption that the driver was drinking while driving. This is particularly true if the open container is within the driver's reach (e.g., the passenger seat area). However, there is no presumption and no probable cause when the open container has been sealed and is located:

• in the trunk of the vehicle; or

• in the last upright seats of the vehicle (behind the front seats).

If you are driving a motor home, the container can be located anywhere in the living area of the motor home.

So, this holiday season and throughout the year, always be sure to seal an open container of alcohol – like maybe when at a nice restaurant and you bring the unfinished bottle of wine home – and then either place the bottle in the last upright seat or in the trunk of the vehicle.

Of course, be sure that you are sober to drive. Know your limits but enjoy your evening out. And if you are arrested and charged with a DUI and/or an open container offense, contact an experienced DUI attorney representing residents of Charlottesville immediately.