With many restaurants expanding to-go offerings to include to-go alcoholic beverages, the COVID-19 crisis has reshaped drunk driving enforcement throughout the country, including in Texas. Some drivers may unwittingly be cited for open-container laws, while police are boosting their use of no-refusal periods to improve DUI conviction rates.
Open Container Citations
In March 2020, Governor Abbott issued stay-at-home orders that, among other changes, closed down restaurant dining rooms to reduce the spread of coronavirus. These orders allowed restaurants to continue serving carryout orders, including alcoholic beverages—so long as the alcohol itself was enclosed in a sealed container. But many restaurants understood the stay-at-home orders to allow them to provide alcohol in a regular to-go cup, making it indistinguishable from any other type of beverage.
Drivers who travel with such cups could be cited for open container violations if pulled over. And drivers who have taken a sip (or more than a sip) from an alcoholic to-go beverage before driving could also risk being charged with DUI. Because to-go alcohol orders are so popular, they aren’t likely to end when the COVID-19 pandemic passes. This means that restaurants that don’t strictly comply with these regulations could be putting their customers at risk of arrest.
Before taking a to-go alcohol order, ensure that the alcohol itself comes in a sealed package. If this just isn’t possible, the safest (and most legal) way to transport the open alcohol is in a non-passenger area such as the trunk, hatch, or truck bed. If you and any passengers can’t access the alcohol while the car is moving, you’re unlikely to be charged with an open container violation.
Getting quick and accurate blood or breath tests is the key to making DUI charges stick. However, drivers have the right to refuse to provide such a sample to the police—making it necessary to get a search warrant in order to compel this testing. If a judge is unavailable to issue the search warrant, the driver suspected of DUI may be completely sober by the time a warrant is finally executed.
No-refusal periods allow law enforcement officers to get warrants far more quickly than usual by putting judges “on call” to review and sign search warrant affidavits. This can ensure that drivers suspected of DUI can be compelled to provide a blood or breath sample within minutes of arrest. In the COVID-19 era, no-refusal periods have grown even more popular, and this trend seems unlikely to change as city and county budgets are squeezed and communities must look to additional sources of revenue. But not all warrants issued during no-refusal periods are legal, and drivers may be able to raise due process or other constitutional defenses.
If you or a loved one has been charged with DUI in Texas, it’s crucial to contact an attorney as soon as possible. There are many potential legal defenses to DUI charges, and an attorney who is experienced in the ins and outs of Texas DUI law can help you work through your options and choose the one that works best for your situation.