It seems like a passenger wouldn’t be able to get a DWI because they wouldn’t be driving while intoxicated or under the influence. By definition, they’re not in control of the vehicle. But does that mean that it’s legal for them to drink in the vehicle?
In short, no, your passengers cannot drink in the car. It is illegal in New Mexico — as it is in most other states — to have an open container in the car. This means that even passengers are prohibited from drinking.
This may sound counterintuitive. If you pick someone up from the bar and they quickly drink their beer before getting in, aren’t they basically just as intoxicated as if they drank the beer while in the car? What difference does it make where they’re consuming the alcohol? There’s no law against being drunk and being a passenger.
The reason for the law is that it stops drivers from having open containers in their vehicles that they could consume alcohol from. The law also prevent them from “hiding” their own drinking and driving by acting as if it is just the passengers who are drinking. Lawmakers simply hope it will cut down on intoxicated driving and will prevent people from “partying” in a car. This can be highly distracting and dangerous even for a sober driver.
There are exceptions to the open container law. The most common is for passengers who are riding in a limo.
If you’re facing charges for drinking and driving or having an open container, you definitely need to know your rights and defense options. An experienced attorney can help.