Search and Seizure: Court clarifies test for drinking while driving with open container

Although the General Assembly has provided indicators that a driver has been consuming alcohol on a public highway in Virginia Code § 18.2-323.1(A), it is unnecessary to meet all three indicators to justify a vehicle search. Instead, probable cause to search a car for evidence of drinking while driving remains a totality of the circumstances analysis that may be informed by an officer’s training, experience and everyday common sense.

Background

The General Assembly has not criminalized the possession of an open container of alcohol when driving a car. Pursuant to Virginia Code § 18.2-323.1(A), it is “unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of the Commonwealth.” The statute goes on to clarify that when a driver is found with (1) an open container of alcohol in the passenger compartment, (ii) with its contents at least partially removed and (iii) the driver exhibits “physical characteristics” consistent with drinking alcohol, there is a “rebuttable presumption” that the driver has consumed alcohol in violation of the law.

The issue is when a police officer identifies a driver with an open container of alcohol in the car, when considering the totality of the circumstances, could this create enough suspicion to search that car for further evidence of drinking while driving? Or must the officer also be satisfied that the other prongs of Code § 18.2-323.1(B) are in play?

In two unpublished opinions, the Court of Appeals held that the three-prong presumption in Code § 18.2-323.1 should be considered in deciding whether there is enough evidence to justify a vehicle search. The Court of Appeals in this case, however, broke with those decisions and employed the traditional “totality of the circumstances” probable cause analysis in affirming the trial court.

Search

Durham argues that the Commonwealth never presented evidence establishing the third prong, that Durham himself showed signs of drinking alcohol. But such an argument misreads the statute and then improperly conflates the issues of probable cause for a search and the burden of proof relative to guilt and innocence.

Though Code § 18.2-323.1(B)’s prongs may be good indicators that a driver has been consuming alcohol on a public highway, it is unnecessary to meet all three to justify a vehicle search. Instead, probable cause to search a car for evidence of drinking while driving remains a totality of the circumstances analysis that may be informed by an officer’s training, experience and everyday common sense.

Here, the officer’s testimony reveals that, leading up to the search, he made three key observations: (1) the odor of alcohol coming from inside Durham’s vehicle; (2) an open cup of amber, alcohol-smelling liquid in a front seat cupholder (albeit in the one a little further from the driver); (3) and an open bottle of liquor in the left rear footwell.

Liquor in an open cup, as opposed to a sealed bottle, located in a front cupholder would lead a reasonable officer to believe that the liquor was there for immediate consumption. This objectively reasonable belief that Durham had been sipping from the cup, coupled with the odor of alcohol and the bottle of liquor in the left rear footwell, gave the officer probable cause to search the vehicle for further evidence of drinking while driving or even driving under the influence of alcohol.

Once inside the passenger compartment, the officer could search every part of the vehicle that might conceal the objects of his search. It was when the officer pushed the button unlatching the console that he encountered the revolver. The Court of Appeals’ determination on the motion to suppress was correct.

Evidence

Durham argues that the evidence was inadequate to show that he constructively possessed the revolver found in the center console. The court disagrees.

Officer Labat testified that as he approached Durham’s car, he noticed Durham twisting towards the center console, hands out of view, while all other occupants sat still and faced forward. While Durham was turning, he simultaneously kept his eye on the officer through the side-view mirror as the officer approached.

These actions could lead a rational trier of fact to believe that Durham concealed the revolver in his center console before it could be seen by law enforcement. Durham’s conduct, combined with his proximity to the revolver, its ambient warmth and Durham’s ownership of the vehicle, provides a factual foundation sturdy enough to support a finding that he constructively possessed a firearm.

Affirmed.

Durham v. Commonwealth, Record No. 230599, Aug. 1, 2024 (Mann). VLW 024-6-030. 16 pp.