Texas Open Container Laws and Tailgating 
Under Texas law, the general rule is that possessing an open container of alcohol in a vehicle on public roads is illegal. However, the rules change when you’re on private property, like a parking lot, which is a common setting for tailgating parties. If your vehicle is parked in a tailgate area, the alcohol consumption itself isn’t an issue—what becomes problematic is whether or not you start driving after drinking. Texas Penal Code Section 49.031 prohibits the possession of an open container in a moving motor vehicle, but the law does not directly apply to tailgating events unless the car is in motion.
In most tailgate scenarios, cars are parked in designated areas, and people are drinking and enjoying themselves in place. The crucial moment when tailgating can go from being legal fun to a DWI risk is when you attempt to drive while under the influence, even if you’ve been drinking only within the confines of a parking lot.
When Drinking at a Tailgate Becomes a DWI Risk
You may be under the impression that you can drink as much as you want in a parked vehicle, but you must consider the next step—driving. If you’re caught driving a vehicle while intoxicated, you may be charged with a DWI, which can have serious legal consequences. In Texas, the legal blood alcohol concentration (BAC) limit is 0.08%. However, it’s important to note that you don’t need to have reached this threshold to be charged with a DWI.
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The Consequences of a DWI Conviction
The consequences of a DWI conviction in Texas are severe and can significantly impact your life. For a first-time offense, you may face a fine of up to $2,000, 3-180 days of jail time, community service, and mandatory alcohol education classes. If you have a child passenger under the age of 15 at the time of the offense, the penalties increase significantly, with fines reaching up to $10,000 and longer jail sentences. Repeat offenders face even harsher consequences, including longer jail sentences, larger fines, and a potential license suspension. The court may also mandate the installation of an ignition interlock device (IID) on your vehicle, which prevents the car from starting if alcohol is detected on your breath. DWI convictions can also affect your employment, driving privileges, and insurance premiums. Having a DWI on your criminal record can make it difficult to find work, particularly in fields that require a clean driving record. Additionally, auto insurance rates may increase significantly after a DWI conviction.
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- Anil Lingutla
I was charged with a DWI and resisting arrest. Knowing Mr. Wilder previously, I went with the Wilder Law Firm to help me out. Their office was able to get my resisting charge thrown out and reduced my DWI charge for me. This result and lesser sentence allows me a better opportunity to recover from the mistake I made. I appreciate Megan being so kind and patient with me during my process. I would recommend her 10/10."
- Isaac Harrell
After being arrested for DUI, I contacted Doug Wilder upon recommendation. Mr. Wilder and his entire staff were amazing with their professional handling of my case from start to finish. Every time I rang with questions someone answered the phone, no long waits for a return call. This was important to me considering a DUI is so stressful. Mr. Wilder and his staff not only got my case dismissed but also guided me through the process and offered utmost care. I cannot thank them enough and highly recommend the Wilder Firm."
- JJ Canter
What to Do if Arrested for DWI After a Tailgate
If you find yourself arrested for DWI after a tailgating event, it’s crucial to know your rights and take immediate steps to protect yourself. First and foremost, remain calm and respectful when interacting with law enforcement. While you should never resist arrest or argue, you also have the right to remain silent and the right to request an attorney. You should also be aware of the Texas Implied Consent Law, which requires you to submit to a breath or blood test if arrested for DWI. Refusing to take a breathalyzer test will result in an automatic suspension of your driver’s license for 180 days, even if you are later found not guilty of DWI. If arrested for DWI, it’s important to consult with a knowledgeable Texas DWI attorney who can help you navigate the legal process and explore your options. An attorney can evaluate the circumstances surrounding your arrest, challenge any evidence that may have been improperly collected, and help protect your rights throughout the case.700+ ACQUITTALS, DISMISSALS & REDUCTIONS FOR OUR CLIENTS
Avoiding a DWI After Tailgating
The best way to avoid a DWI charge after a tailgate is to plan ahead. If you know you’ll be drinking at a tailgate, make sure to arrange for a safe, sober ride home. There are plenty of alternatives to driving yourself, including:- Designating a sober driver: Make sure that someone in your group agrees to stay sober and drive everyone home safely.
- Using a ride-sharing service: Services like Uber or Lyft can get you home safely without the need to drive.
- Public transportation: Many stadiums offer shuttle buses or have access to public transportation options that can take you to and from the game.