# An Open Container Can Escalate DWI Charges | TadLaw

If you are arrested for [drunk driving](https://tadlaw.com/resources/texas-dwi-resources/texas-dwi-laws/), the presence of an [open container](https://tadlaw.com/resources/texas-dwi-resources/dwi-open-container-violations/) of alcohol in your vehicle can add fuel to the legal fire.

In Texas, a [first-time DWI](https://tadlaw.com/resources/texas-dwi-resources/first-offense-dwi/) is charged as a Class C misdemeanor, but with an open-container enhancement that gets bumped to a Class B misdemeanor. In practical terms, this effectively doubles the minimum amount of jail time you face–six days vs. 72 hours–if convicted. And for a [second](https://tadlaw.com/resources/texas-dwi-resources/second-offense-dwi/) or [third DWI conviction](https://tadlaw.com/resources/texas-dwi-resources/third-offense-dwi/), the open-container “enhancement” can still increase your punishment.

## Appeals Court Rejects Challenge to Validity of Blood Test in DWI-Open Container Case

For instance, in a recent DWI case from San Antonio, [*Brady v. State*](https://accounts.google.com/v3/signin/identifier?continue=https%3A%2F%2Fscholar.google.com%2Fscholar_case%3Fcase%3D6670413026580467533&dsh=S1831620057%3A1781035308627871&hl=en&flowName=GlifWebSignIn&flowEntry=ServiceLogin&ifkv=AcDsRvzB90euIomBOleRldhNBx50gfZCQPtU5G6v5pLg1zooQuQn-6nBaNLXugZVd6o4oZur0AuKlA/), a judge found the defendant guilty of a second-offense DWI with an open-container enhancement. (As the defendant, you can elect to waive your right to a jury trial and have the judge decide your guilt or innocence.) The judge subsequently sentenced the defendant to six months in jail–significantly more than the 30-day minimum for a second offense–but gave him credit for time served.

The defendant still appealed the conviction. His main contention on appeal was that the state improperly authenticated the report on his blood-alcohol test. To give some additional background, a state trooper initially stopped the defendant because he had a broken light and “cut in front of another vehicle.” During the stop, the trooper said he smelled alcohol on the defendant’s breath and noticed he was not speaking clearly.

The trooper also observed an “open container” inside the defendant’s vehicle. When questioned, the defendant initially replied it was simply soda. But later, the defendant admitted to having a “few beers” earlier that day. The defendant also failed to provide a clear answer when the trooper asked where he was going.

[![Open Container Violation - An Open Container Can Escalate DWI Charges](https://tadlaw.com/wp-content/uploads/2018/07/Open-container-violation-300x200.jpg)](https://tadlaw.com/wp-content/uploads/2018/07/Open-container-violation.jpg)**This prompted the trooper to conduct a field sobriety test, which led to the defendant’s arrest for DWI.**

Later, a registered nurse conducted a blood draw, which was sent to the Texas Department of Safety crime lab for testing. The test showed the defendant’s blood-alcohol concentration was .128 percent, which exceeded the legal limit of 0.08 percent.

The defendant’s challenge centered on the fact the laboratory report of this test “did not identify the nurse who performed [the defendant’s] blood draw by name.” By failing to provide this information, the defendant argued the prosecution failed to establish a proper “chain of custody” for the blood test.

The appeals court disagreed and upheld the defendant’s conviction. It credited the trooper’s testimony that he personally witnessed the blood draw, as well as evidence from the forensic scientist who actually tested the sample, as sufficient to establish a proper chain of custody.

## Arrested for DWI w/Open Container?

For a free legal consultation, call [(281) 280-0100](tel:+12812800100) today

### Speak with a Houston Defense Lawyer Today

The defendant in this case did himself no favors by admitting his prior alcohol consumption to the trooper and answering other questions asked of him prior to arrest. Remember, you do not need to answer such questions when detained on the pretext of a traffic stop.

If you are charged with DWI or an open-container violation, you should [contact a qualified Houston criminal defense attorney](https://tadlaw.com/contact-us/) as soon as possible. Call the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today if you need immediate assistance.

Call or text [(281) 280-0100](tel:+12812800100) or fill out our [Free Case Evaluation Form](https://tadlaw.com/contact-us/) to get started

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Source: https://tadlaw.com/blog/an-open-container-can-escalate-dwi-charges/