Exclusively Practicing Criminal Defense for
Two Decades
David Olshansky

Drinking in Public

We have come a long way from the time of prohibition in the country. Drinking has been legalized in private settings and indoors in the state of Illinois. Nonetheless, drinking in public is still seen as socially irresponsible and an affront to civilized behavior.

It is not just the act of drinking that is seen as an offense. Carrying an open container of alcohol in a public space, such as public transport, is also an offense. This would hold in court even if you were not actually drinking the alcoholic contents.

State Legislation

The legislation regarding alcohol consumption and carrying in public is covered under various Illinois statutes. Chicago statute 8-4-030 states that it is unlawful for any person to drink any alcoholic liquor in public or in a motor vehicle upon a public way in the city.

The law also prohibits a person from transporting, carrying, possessing or having alcoholic liquor in or about any motor vehicle upon a public way except in the original package with unbroken seal or in a properly sealed package inside a bag.

According to 625 ILCS 5/11-502, a driver is not allowed to carry, transport, possess or have any alcoholic liquor within the motor vehicle except in the original container and unbroken seal.

235 ILCS 5/6-33 states that a licensed restaurant may permit a patron to remove one bottle of partially consumed alcohol from the premises on the condition that the bottle is securely sealed by the licensee and placed in a bag.


Violation of the public drinking and carrying laws can be charged as a Class B misdemeanor. Offenders can be sentenced for up to 6 months in prison and a fine of $100 to $500.

While the punishment for public drinking is not as harsh as other offenses, it should be noted that the charge is usually brought together with related offenses by the prosecution. Related charges could be causing disturbance to peace and order, resisting an officer, driving under influence, attempted assault and drug possession.

Even a minor conviction can lead to creating a criminal record for the offender. The state of Illinois treats repeat offenders very harshly and minor misdemeanor charges could lead to more serious convictions under habitual juvenile offender laws.


Most people that get charged with public drinking in Illinois belong to one of three categories.

  1. Underage drinkers
  2. People caught driving under influence
  3. Highly intoxicated people that are causing public disturbance

The law enforcement agencies don’t usually take public drinking offenses very seriously unless they know the person may also be charged with another offense. It usually isn’t worth the effort to arrest someone who is carrying an open can of beer or drinking quietly on the bus without causing any disturbance.

That of course does not mean that an officer cannot arrest the person. They simply choose not to because the case will likely get thrown out if the defendant gets a good legal counsel.

The people that do get arrested more often are minors and teenagers who are caught with alcohol. Drinking and even carrying a sealed bottle of alcohol may land an unaccompanied teenager in trouble with the law. It could be devastating to a young person to get a criminal record before the age of 18.

The second category of people that gets commonly charged with possession and drinking is motor vehicle drivers. Driving under influence is strictly prohibited. It is a punishable offense as drunk drivers are a threat to their own safety and the safety of others around them.

It should be noted that even the possession of unsealed alcohol in the vehicle can be grounds for an arrest and conviction. For instance, if the police officers stop a car and see an open can of beer on the dashboard or a half-drunk bottle of wine on the passenger seat, they can arrest the driver even when he or she has not been drinking alcohol.

Examples and Court Cases

While making a visible display of unsealed alcohol is openly asking for trouble, there are also instances where the police officers go over their authority and make an unnecessary arrest.

The fourth amendment gives every citizen the right of feeling secure in their property and protects against unreasonable search and seizures.

Suppose that you are driving on the road with an unsealed bottle of wine lying inside your dashboard. The police officers signal for you to stop for a traffic violation. They detect no sign of drinking but choose to make you take a sobriety test and find that you are completely sober. One of the officers opens the dashboard and finds the half consumed bottle inside.

If the police then charge you for carrying unsealed alcohol with you, the case would not hold in court. Police officers are not authorized to perform search without probable cause, unless you give them a reason to search you first.

Suppose that you fail the sobriety test or the wine inside the compartment starts leaking, giving a strong smell of alcohol presence in the car. These could be presented as probable causes to search the vehicle.

Possible Legal Defenses

Drinking publicly is a crime in the city of Chicago and most places in Illinois. If you are walking on the street drinking from a can of beer or open bottle of wine, the police have the right to arrest you under the law.

There are three possible defenses open to people charged with public drinking and carrying alcohol openly.

The first defense is to deny that the accused was drunk. For this defense to hold, the defendant should not have acted in a manner that makes them seem drunk. The police usually gets video footage of such incidents these days and the burden of proof is on the defendant to prove sobriety at the time of the arrest.

The second defense is to argue that the accused was not in a public place. Drinking in private, like your home or a friend’s private party is legal in Illinois. Based on the circumstances of the case this defense is an option.

Another defense available in limited cases is to deny that the accused was actually drinking at the time of the arrest. The most important piece of evidence in public drinking charges is an unsealed bottle or container of alcohol. If this evidence is missing or compromised, the case would not hold ground. Questioning the validity of whether the container was actually open plays an important part in public drinking trials.

It should be noted that public drinking is very different from driving under influence. Court charges and legal defenses in either case are distinct from one another.