Official Opinion 2008-7

You have requested my official opinion on whether Senate Bill 55, introduced and enacted into law in the 2008 session of the General Assembly and codified at O.C.G.A. § 3‑6‑4 and O.C.G.A. § 40‑6‑253(a)(2), can be implemented so that the State of Georgia complies with the federal “open container” law provisions of 23 U.S.C. § 154 and 23 C.F.R. § 1270.4.   You have stated that a determination that the State of Georgia does not comply would cause the National Highway Transportation Safety Administration to transfer approximately $27,000,000 from the Georgia Department of Transportation to another agency within the government of the State of Georgia that operates eligible federal safety programs.  For reasons that follow, it is my official opinion that the provisions in question are enforceable in a manner that will allow the State of Georgia to comply with the federal “open container” provisions.

23 U.S.C. § 154(b) (2005) provides, in pertinent part, that

each State shall have in effect a law that prohibits the possession of any open alcoholic beverage container, or the consumption of any alcoholic beverage, in the passenger area of any motor vehicle (including possession or consumption by the driver of the vehicle) located on a public highway, or the right-of-way of a public highway, in the State.

23 C.F.R. § 1270.4(a) (2000) provides, in pertinent part:

To avoid the transfer of funds . . . a State must enact and enforce a law that prohibits the possession of any open alcoholic beverage container, and the consumption of any alcoholic beverage, in the passenger area of any motor vehicle (including possession or consumption by the driver of the vehicle) located on a public highway, or the right-of-way of a public highway, in the State.

23 C.F.R. § 1270.4(b) (2000) provides further that the State law must apply to:

(1) The possession of any open alcoholic beverage container and the consumption of any alcoholic beverage;

(2) The passenger area of any motor vehicle;

(3) All alcoholic beverages;

(4) All occupants of a motor vehicle; and

(5) All motor vehicles located [on] a public highway or the right-of-way of a public highway.

23 C.F.R. § 1270.4(c) (2000) requires that “[t]he law must provide for primary enforcement.”  23 C.F.R. § 1270.4(d) provides as an exception to the passenger area prohibition that

[i]f a State has in effect a law that makes unlawful the possession of any open alcoholic beverage container and the consumption of any alco- holic beverage in the passenger area of any motor vehicle,but permits the possession of an open alcoholic beverage container in a locked glove compartment, or behind the last upright seat or in an area not normally occupied by the driver or a passengerin a motor vehicle that is not equipped with a trunk,the State shall be deemed to have in effecta law that applies to the passenger area of any vehicle, as provided in para- graph (b)(2) of this section.

O.C.G.A. § 40‑6‑253 complies with the federal provisions by first providing in subsection (a)(1) an expansive definition of “alcoholic beverage” which includes beer, wine, and distilled spirits. Subsection (a)(2) defines an “open alcoholic beverage container” as a “bottle, can, or other receptacle” that contains any amount of alcohol and is open or has an open seal; or the contents of which have been partially removed.   Subsection (a)(3) defines “passenger area” as the area designed to seat the driver and passengers while a motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in his or her seating position; provided, however, that such term does not include any locked glove compartment or, in a passenger car not equipped with a trunk, any area behind the rearmost upright seat or not normally occupied by the driver or passengers.

O.C.G.A. § 40‑6‑253(b), with exceptions that are not pertinent to this discussion, prohibits any person from consuming an alcoholic beverage or possessing an open alcoholic beverage container in the “passenger area of a motor vehicle which is on the roadway or shoulder of a public highway.”   O.C.G.A. § 40‑6‑253(c) provides for a fine not to exceed $200.00 for a violation of the Code section.

Senate Bill 55, enacted at 2008 Ga. Laws 834, amended O.C.G.A. § 40‑6‑253(a)(2) by inserting an exception to the definition of “open alcoholic beverage container” that “[a] bottle of wine that has been resealed pursuant to Code Section 3‑6‑4 shall not constitute an open alcoholic beverage container for purposes of this Code section.” 

O.C.G.A. § 3‑6‑4, which is incorporated into O.C.G.A. § 40‑6‑253 by this reference, provides that

[a] partially consumed bottle of wine that is to be removed from the premises must be securely resealed by the licensee or its employees before removal from the premises. The partially consumed bottle of wine shall be placed in a bag or other container that is secured in such a manner that it is visibly apparent if the container has been subsequently opened or tampered with, and a dated receipt for the bottle of wine and meal shall be provided by the licensee and attached to the container. If transported in a motor vehicle, the container with the resealed bottle of wine shall be placed in a locked glove compartment, a locked trunk, or the area behind the last upright seat of a motor vehicle that is not equipped with a trunk. 

(Emphasis added.)  Even though O.C.G.A. § 40‑6‑253 now provides that a “resealed” bottle of wine is not an “open alcoholic beverage container,” federal law recognizes no such exception.  23 U.S.C. § 154(a)(3).  However, O.C.G.A. § 3‑6‑4 requires not only that the bottle of wine be “resealed” but that it be transported in a manner consistent with federal and state law, i.e., “in a locked glove compartment, a locked trunk, or the area behind the last upright seat of a motor vehicle that is not equipped with a trunk.”  (Emphasis added.)  Accordingly, it is reasonable to conclude that the General Assembly intended for the resealed bottle of wine to be transported only as provided in O.C.G.A. § 3‑6‑4; otherwise, there would have been no reason to include that language in the amended statute.  The legislative purpose behind O.C.G.A. § 40‑6‑253 is to prohibit consumption of alcohol and possession of open alcoholic beverage containers in the passenger compartment of a vehicle in order to protect public safety and comply with federal law.  Nothing in the language permitting transporting resealed wine bottles evidences an intent to depart from this purpose.

The holding in Billbrey v. State, 254 Ga. 629, 632 (1985), supports construing O.C.G.A. § 40‑6‑253 in conjunction with O.C.G.A. § 3‑6‑4 so as to provide for enforceability of O.C.G.A. § 3‑6‑4.  In Billbrey, the defendant, who was charged with vehicular homicide, challenged a charge of unintentionally causing the death of another while driving too fast for conditions on the grounds that the applicable statute, O.C.G.A. § 40‑6‑180[1], was vague and violated constitutional provisions. The Georgia Supreme Court held that O.C.G.A. § 40‑6‑180 furnished sufficient criteria when read in conjunction with O.C.G.A. § 40‑6‑181[2] to have made it reasonably clear and “so definitely and certainly define[d] the [criminal] offense that a person of reasonable understanding can know at the time of the commission of the act that the law is being violated.”  Id. at 631.  The Court further noted that “although our statutory scheme is not as specific as some, we hold that when read as a whole it gives sufficient warning of what conduct is unlawful and meets due process requirement.”  Id. at 632; see also Neiswonger v. Janics, 196 Ga. App. 607, 609 (1990) (finding that the jury was authorized to find that appellant violated O.C.G.A. § 40‑6‑42(1), which addresses passing by vehicle, when its provision was considered in conjunction with O.C.G.A. § 40‑6‑312(a), which provides that no motor vehicle shall be driven in such a manner as to deprive any motorcycle of the full use of a lane.)

There is an argument that this construction of O.C.G.A. § 3‑6‑4 in conjunction with O.C.G.A. § 40‑6‑253 does not adhere to the strict construction required of criminal statutes.   See McGonagil v. Treadwell, 216 Ga. App. 850, 853 (1995).  However, the incorporation of one Code section into another by reference does not interfere with the strict construction of a statute. 

Further, Georgia case law mandates that when construing statutes it must be presumed that the General Assembly enacts laws with full knowledge of the existing condition of the system of laws of which the statute being construed is a part.  SeeStatev. Velazquez, 283 Ga. 206, 207 (2008).  Accordingly, all laws affecting the transporting of “open alcoholic beverage containers” should be considered in construing O.C.G.A. § 3‑6‑4 and the resulting construction must be determined in a manner that upholds its effect, harmonizing it with the existing law, i.e., O.C.G.A. § 40‑6‑253.  Accordingly, O.C.G.A. § 3‑6‑4 can and should be read in a manner that upholds the intent of both O.C.G.A. § 40‑6‑253 and O.C.G.A. § 3‑6‑4.

Therefore, it is my official opinion that the enforcement provisions of O.C.G.A. § 40‑6‑253 remain in effect, including for bottles of wine resealed pursuant to O.C.G.A. § 3‑6‑4, and that the 2008 changes in Georgia law were not intended to and did not authorize carrying open alcoholic beverage containers in the passenger area of vehicles.

Annette Simelaro

Assistant Attorney General