Wisconsin’s open-container law (Wis. Stat. § 346.935) prohibits drivers and passengers from possessing an open container of alcohol in the passenger area of a motor vehicle on a public road. The citation is a civil forfeiture (no demerit points, no criminal record on its own) but because it is almost always the probable cause that led to an OWI investigation, the charge rarely appears in isolation.
The "passenger area" definition that decides these cases
The statute applies only to the space normally occupied by driver or passengers, including unlocked glove compartments. Sealed containers in the trunk (or behind the rearmost upright seat in a vehicle without a trunk) are outside the statutory passenger area and exempt. So are the living quarters of a motor home while stationary, the passenger compartment of a bus, and chauffeured vehicles and taxicabs.
Dismissals are common where the container was stored in an exempt location. We frame these cases around the statutory definition, not the officer’s assumption, because the officer often assumes any container in the vehicle is in the passenger area, and the statute reads much more narrowly than that.
How the open-container ticket sits alongside OWI
Open container is a separate offense from OWI under Wis. Stat. § 346.63, a driver can be charged with both, either, or neither. The open container is civil ($175–$263 forfeiture); the OWI is criminal with far heavier stakes. When both are filed from a single stop, the OWI is the rate-changer for insurance and the license-impact charge.
For OWI defense we refer to our sister firm at racineowi.com, which handles Wisconsin OWI cases exclusively. The open-container piece can usually be disposed of alongside the OWI resolution or (where the storage location was exempt) separately dismissed.
Attribution defenses for shared or rental vehicles
In shared-vehicle situations (carpool, rental, rideshare, borrowed car) the State has to prove that a specific driver or passenger possessed the container. Mere presence in the vehicle is not enough under Wisconsin's possession doctrine, and officers regularly cite the driver by default without a factual basis.
For CDL holders the stakes shift: 49 CFR § 392.5 imposes zero-tolerance for open alcohol containers in a commercial motor vehicle at any time, and a conviction in a CMV can count toward FMCSA safety rating. In a personal vehicle the open container itself has no CDL consequence, but an OWI companion charge is a one-year CDL disqualification.
What a open container conviction costs in Wisconsin
- Demerit points
- 0 Civil forfeiture under Wis. Stat. § 346.935, no driver-record points, no direct CDL impact in a personal vehicle
- Fine + surcharge
- $175 – $263 First offense; plus $93 court surcharge. Second offense within 5 years can reach $500+
- Passenger exposure
- Same as driver Passenger with an open container gets cited separately; sober driver is no defense for passenger possession
- OWI companion rates
- Separate prosecution Open container is civil; OWI is criminal (Wis. Stat. § 346.63). Both can be filed, either can stand alone
- Vehicle exemptions
- Limo · taxi · motor home · trunk Wis. Stat. § 346.935(2): chauffeured vehicles, taxicabs, stationary RV living quarters, bus passenger area, and sealed trunk storage
- CDL impact (CMV only)
- Zero tolerance 49 CFR § 392.5 prohibits open alcohol in a CMV at any time; separate from personal-vehicle impact
Our open container defense playbook
Exempt-area storage
The most reliable defense: the container was stored in an exempt location, the trunk, behind the rearmost upright seat in an SUV, the RV living quarters, or a chauffeured vehicle. Each is specifically outside the statutory passenger area, and a successful location argument results in outright dismissal, not just reduction.
Possession attribution in shared vehicles
In carpool, rental, or rideshare situations the State has to prove a specific driver or passenger possessed the open container. Mere presence is not enough. For shared-vehicle clients we develop the factual basis for non-attribution: whose hands, whose seat, whose prior possession, whose beverage brand.
Vehicle-type exemptions under § 346.935(2)
Limousines and chauffeured vehicles, taxicabs, buses, and the living quarters of motor homes while stationary are all statutorily exempt. For clients riding in a limo or rideshare, the vehicle-type exemption alone defeats the charge.
Separation from the OWI case
When the open container is paired with OWI, the civil open-container citation and the criminal OWI are on separate procedural tracks. We coordinate with your OWI defense (or refer to racineowi.com) to ensure the open container disposes cleanly, often as a condition of the OWI plea or through dismissal when exempt-area storage applies.
Challenge the probable-cause basis of the stop
Open-container observations often come mid-stop, after the officer already had to justify pulling you over. If the initial stop lacked probable cause or reasonable articulable suspicion, the open-container evidence is subject to suppression under Fourth Amendment doctrine, sometimes unwinding an OWI companion charge along with it.
Racine, Kenosha & Walworth county courts
Open-container citations as civil forfeitures are heard in the court of the citing jurisdiction (municipal court for city or village police stops, county circuit court for sheriff or Wisconsin State Patrol citations. When paired with OWI, the open-container civil case typically moves into the same court that hears the OWI criminal case, managed alongside it.
Our attorneys appear regularly in Racine County Circuit Court (730 Wisconsin Ave., Racine), Kenosha County Courthouse (912 56th Street, Kenosha), Walworth County Judicial Center (1800 County Road NN, Elkhorn), and the municipal courts of Racine, Mt. Pleasant, Caledonia, Sturtevant, Kenosha, Pleasant Prairie, Lake Geneva, Delavan, Burlington, Union Grove, and surrounding jurisdictions. For standalone open-container cases your personal appearance is typically not required) we handle every court date.