Open Container and DWI in Houston, Texas: How an Open Container Can Hurt — And Help — Your Harris County DWI Case

Open Container and DWI in Houston, Texas: How an Open Container Can Hurt — And Help — Your Harris County DWI Case

A Comprehensive Guide for Anyone Arrested for DWI with an Open Container in Harris County — And Why You Need Attorney Eric J. Benavides on Your Side

In Houston and throughout Harris County, police departments are constantly on the lookout for intoxicated drivers. Whether you are stopped for speeding, failing to signal, swerving, or some minor traffic violation, officers often use even the smallest detail to turn a routine stop into a Driving While Intoxicated (DWI) investigation. One detail that can instantly transform the nature of a traffic stop — and significantly impact your DWI case — is the discovery of an open container of alcohol in your vehicle.

Open container allegations can influence:

• How the officer evaluates you
• How prosecutors charge you
• How judges sentence you
• How juries perceive you
• How your defense attorney must approach your case
• How your blood alcohol concentration (BAC) is interpreted

But what many people do NOT realize is this:

An open container can create scientific uncertainty about your actual BAC at the time of driving — and may actually strengthen certain defenses.

This article explains everything you need to know about open containers and DWI charges in Houston, how Texas law treats these cases, and how Attorney Eric J. Benavides, one of Houston’s top DWI defense lawyers, uses open container allegations to defend clients in Harris County.

This is a long, in-depth piece written for anyone looking for information about DWI charges in Houston, Texas.

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Open Container Alone Is Normally a Class C Ticket — BUT NOT in a DWI Case

Many people mistakenly think that an open container is a major criminal charge on its own. It’s not.

Outside of a DWI arrest, open container is only a Class C citation — similar to a traffic ticket.

However…

When You Are Charged With DWI, an Open Container Enhances the Punishment

Texas Penal Code §49.04(c) states that if the State proves you had an open container in your possession while operating a motor vehicle at the time of the offense, the minimum term of confinement increases to:

• Minimum of 6 days in jail for a first-time DWI
• Instead of the normal 3 days minimum

This is called a punishment enhancement.

It does NOT change:

• The level of the offense (still a Class B DWI)
• The overall punishment range

But it does change:

• Mandatory minimum jail time
• The way prosecutors evaluate the case
• The plea offers you may receive
• The judge’s view of your case
• Jury perception

Many prosecutors in Harris County see an open container as a sign of “party drinking,” recklessness, or disregard for the law.

But this is only one side of the equation.

Why Police and Prosecutors Treat Open Container DWIs More Harshl

Houston police officers (HPD), Harris County Sheriff’s Office (HCSO), constables, and DPS troopers are trained to view an open container as:

• Evidence you were drinking while driving
• Evidence you consumed alcohol shortly before the stop
• Evidence of recent consumption
• Evidence that your BAC may be rising
• Evidence suggesting poor judgment
• Evidence of intentional risk-taking

While none of this may actually be true, the presence of an open container creates a bias — one that experienced DWI defense attorneys know how to combat.

Prosecutors also know jurors do not like seeing open containers inside a vehicle. Even if a person is not intoxicated at all, the mere presence of an open drink can:

• Prejudice jurors
• Influence how they interpret field sobriety tests
• Color their impressions of bodycam footage
• Make them believe the driver was intoxicated before any scientific evidence is presented

But here’s the key:

Open container evidence is NOT proof of intoxication.

It is only proof that a container existed in a certain condition.

Attorney Eric J. Benavides knows how to separate emotion from fact — and how to force the State to stick to the law and actual evidence.

The BIGGEST Thing People Don’t Know: An Open Container Can Actually HELP Certain DWI Defenses

This is where things get interesting.

An open container can be used to support several highly effective defenses:

• Rising BAC defenses
• Absorption-phase defenses
• Time-of-driving arguments
• Challenges to retrograde extrapolation
• Challenges to State toxicology assumptions

This is because an open container gives the defense a scientific explanation for why a BAC taken 30–133 minutes after the stop might be higher than the BAC at the time of driving.

Let’s break this down.

Why Recent Drinking Helps You – The Science Behind Rising BAC

If the officer finds an open bottle or cup that has recently been consumed, this strongly suggests recent drinking.

This means:

You may have been in the absorption phase.

The absorption phase is the period where alcohol is still entering the bloodstream but has not yet peaked. Depending on the person and circumstances, absorption can take:

• 30 minutes to 133 minutes
• Sometimes even longer

This means:

Your BAC at the time of driving may have been significantly lower than your BAC at the time of the test.

This is one of the most powerful defenses in DWI law — and an open container strengthens it.

Rising BAC Example With Open Container

Let’s say:

• You left a restaurant after taking several last sips from a margarita.
• A partially full to-go cup is in your center console.
• You get stopped 5 minutes later.
• The officer conducts field sobriety tests for 15 minutes.
• You are transported to the station.
• A breath test is conducted 45 minutes after the stop.

Your breath test shows 0.11.

But at the time of driving, your BAC may have been 0.06–0.08 or lower.

The open container supports the argument that:

• You consumed alcohol shortly before driving
• You had unabsorbed alcohol in your stomach
• Your BAC was still rising during the stop
• Your BAC peaked AFTER driving, not before

This destroys the prosecution’s attempt to claim you were intoxicated at the time of driving, which is what Texas law requires.

Absorption Defenses Strengthened by Open Containers

When an officer finds an open drink, it often means:

• There is incomplete documentation of drinking patterns
• The officer does not know how much was consumed
• The officer does not know when it was consumed
• The officer does not know whether absorption was complete

For an absorption-phase defense, this lack of knowledge is powerful.

Defense experts can point out:

• Lack of food intake information
• Unknown drinking schedules
• Unknown types of alcohol
• Unknown absorption rates
• Unknown metabolism
• Unknown body chemistry

The open container is physical evidence that the State cannot reconstruct your drinking timeline.

This makes their scientific burden almost impossible to meet.

Retrograde Extrapolation Becomes Nearly Impossible When an Open Container Is Present

Retrograde extrapolation is the State’s attempt to calculate what your BAC was at the time you were driving based on your later test result.

However…

Retrograde extrapolation only works when the expert has accurate information about the drinking pattern.

In open container cases:

• There is no reliable drinking pattern
• There is no reliable absorption timeline
• Officers rarely ask enough questions
• Officers often jump straight into a DWI investigation
• Officers document poorly
• Prosecutors lack adequate data to support effective extrapolation

Long story short:

The presence of an open container destroys the State’s ability to do retrograde extrapolation.

And without retrograde extrapolation, they cannot prove your BAC at the time of driving, which is required for DWI conviction under Texas law.

How Open Containers Affect Juries in Houston DWI Trials

Juries are human. They make judgments. They form impressions quickly.

Seeing an open beer can or a cup with alcohol can create an emotional reaction.

Common juror assumptions include:

• “If there was an open beer, they were definitely drinking in the car.”
• “They must have been intoxicated before they got pulled over.”
• “If they were drinking recently, their BAC was probably high.”

While none of these assumptions may be scientifically true, they influence:

• Juror bias
• How jurors interpret video evidence
• How they evaluate field sobriety tests
• How they respond to expert testimony

This is why a Houston DWI lawyer must:

• Neutralize emotional reactions
• Focus jurors on actual legal standards
• Emphasize scientific uncertainty
• Explain rising BAC
• Explain absorption
• Expose weaknesses in the State’s assumptions

Attorney Eric J. Benavides is highly skilled at reframing open container evidence so jurors focus on logic and science, not emotion.

How Open Containers Affect Harris County Prosecutors

Harris County prosecutors may initially take a tougher stance when an open container is involved. They may:

• Offer worse plea deals
• Assume intoxication earlier than supported
• View you as reckless
• Argue the case more aggressively

However…

Experienced DWI defense lawyers know that:

Prosecutors worry about scientific uncertainty.

When Attorney Eric J. Benavides shows them that the open container actually undermines retrograde extrapolation — and therefore prevents the State from proving intoxication at the time of driving — prosecutors often become much more open to:

• Dismissals
• Reductions
• Pretrial interventions
• Deferred adjudication options
• Amended charges

Prosecutorial attitudes shift when they see a defense attorney who understands the science.

Police Officers Often Make Scientific Mistakes in Open Container DWIs

Open container DWI cases commonly involve major police mistakes, including:

• Failure to document alcohol odor source
• Failure to differentiate between driver and passenger consumption
• Failure to photograph the container
• Failure to preserve evidence
• Failure to ask when you last drank
• Failure to note food intake
• Failure to identify liquid contents
• Failure to measure remaining alcohol

Officers often assume the open container belongs to the driver — even if a passenger was the one drinking.

These mistakes give defense attorneys powerful tools to attack:

• The officer’s credibility
• The reliability of the investigation
• The validity of the arrest
• The strength of the prosecution’s case

Open Container and Time-of-Driving Issues in Harris County DWIs

Time-of-driving arguments are some of the strongest defenses in DWI law.

Texas requires the State to prove intoxication at the time of driving, not at the time of the test.

Open containers help support time-of-driving defenses because they indicate:

• Recent consumption
• Unabsorbed alcohol
• Rising BAC
• Rapidly changing BAC levels
• Unknown absorption rate

When there is an open container present, the defense can argue:

• The driver consumed alcohol shortly before the stop
• The BAC was lower during driving
• The BAC only rose later
• The test does NOT reflect intoxication at the time of driving

This creates reasonable doubt, which is often all that is necessary for acquittal or dismissal.

Why You Should Not Plead Guilty Just Because You Had an Open Container

Many people think open container + DWI = hopeless case.

This is false.

In fact, these cases often have more defenses than standard DWI cases.

An open container may give the defense:

• Rising BAC arguments
• Absorption-phase defenses
• Scientific doubt
• Retrograde extrapolation weaknesses
• Reasonable alternative explanations for high BAC
• Opportunities to exclude certain expert testimony
• Stronger cross-examination points
• A stronger negotiating position

This is why the first step after an open container DWI arrest is to contact an experienced Houston DWI lawyer who knows how to leverage these defenses.

Attorney Eric J. Benavides: Houston’s Open Container DWI Defense Lawyer

Attorney Eric J. Benavides has years of experience defending people charged with DWI in Houston and Harris County. He is widely respected for his:

• Knowledge of DWI science
• Deep understanding of alcohol absorption and BAC curves
• Ability to cross-examine State toxicologists
• Skill in challenging retrograde extrapolation
• Expertise in undermining officer assumptions
• Aggressive and strategic defense methods
• Strong relationships within Harris County courts
• Proven record of dismissals and reductions

He knows that open container cases are defensible, and often more defensible than people expect.

If you want a lawyer who understands both the science and the courtroom strategy required to win open container DWI cases, you need Attorney Benavides.

Conclusion: An Open Container May Hurt Your Image — But It May Help Your Defense

Here’s the truth:

• Open containers look bad.
• They can influence a jury.
• They can enhance punishment.
• They can make prosecutors more aggressive.

BUT

An open container can also provide:

• Scientific evidence of recent drinking
• A foundation for rising BAC defenses
• Support for absorption-phase arguments
• A way to defeat retrograde extrapolation
• Reasonable doubt about intoxication at the time of driving

This combination means that open container DWI cases are highly winnable with the right lawyer.

Charged With DWI and Open Container in Houston? Call Eric J. Benavides Today.

☎️ (713) 222-2828

📍 Serving Houston, Harris County, and surrounding areas

🌐 www.ericbenavides.com

You need a lawyer who understands:

• The science
• The strategy
• The courtroom
• The Harris County system

You need a lawyer who can turn an open container from a weakness into a powerful defense tool.

You need Attorney Eric J. Benavides.

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