WV beer--gimme one for the road..

Factual Questions
1

I’ve seen it cited in every article saying that WV will lose highway funds because we don’t have an approved open container law. On all of these web sites and articles, it is contended, that “passengers, but not drivers” may drink.

I’ve cobbled together the relevant code sections below and, to me at least, it seems as if this is wrong. It looks as if both passengers and drivers are forbidden from drinking wine or liquor, but both passengers and drivers are PERMITTED to drink beer.

Not looking for legal advice, just trying to show that the common knowledge around here is wrong. Thoughts?

§60-6-9. Intoxication or drinking in public places; illegal possession of alcoholic liquor; arrests by sheriffs or their deputies for violation in their presence; penalties.
(a) A person shall not:
(2) Drink alcoholic liquor in a public place;
(3) Drink alcoholic liquor in a motor vehicle on any highway, street, alley or in a public garage;
(4) Tender a drink of alcoholic liquor to another person in a public place;

§60-1-5. Definitions.
For the purposes of this chapter:
“Beer” shall mean any beverage obtained by the fermentation of barley, malt, hops, or any other similar product or substitute, and containing more alcohol than that of nonintoxicating beer.
"Nonintoxicating beer" shall mean any beverage, obtained by the fermentation of barley, malt, hops, or similar products or substitute, and containing not more alcohol than that specified by section two, article sixteen, chapter eleven.
"Alcoholic liquor" shall include alcohol, beer, wine and spirits, and any liquid or solid capable of being used as a beverage, but shall not include nonintoxicating beer.

§11-16-2. Declaration of legislative findings, policy and intent; construction.
§11-16-3. Definitions.
For the purpose of this article, except where the context clearly requires differently:
(5) “Nonintoxicating beer” means all cereal malt beverages or products of the brewing industry commonly referred to as beer, lager beer, ale and all other mixtures and preparations produced by the brewing industry, including malt coolers and nonintoxicating craft beers containing at least one half of one percent alcohol by volume, but not more than nine and six-tenths of alcohol by weight, or twelve percent by volume, whichever is greater***, all of which are hereby declared to be nonintoxicating and the word “liquor” as used in chapter sixty of this code shall not be construed to include or embrace nonintoxicating beer nor any of the beverages, products, mixtures or preparations included within this definition.
***Would include all common beers

2

Intriguing. The Supreme Court of Appeals of West Virginia seems to back you up on this, though IANAL. This details an appeal for a case in which a man was found guilty of furnishing “alcoholic liquors” to minors, in violation of WV code 60-3-22a(b). His conviction was overturned in the appeal, though, as the alcohol in question was Coors Light, which was defined as a “nonintoxicating beer”. This would have placed him in violation of 11-16-19(c).

According to WV’s constitution, however: “No person shall be held to answer for treason, felony or other crime, not cognizable by a justice, unless on presentment or indictment of a grand jury.” Since he was indicted for furnishing alcoholic liquor, but convicted for furnishing “nonintoxicating” beer, this conviction was reversed. And of course, he couldn’t be tried for it again. Double Jeopardy and all.

Some of the kids that were at the party the night in question crashed their car driving home. Two died…

ETA: Adding again, with great emphasis, IANAL… But this intrigued me and I’ve spent the last couple hours googling around, and as far as I can tell, you’ve indeed found a loophole in the law. Can anyone with actual legal experience explain why it’s not?

3

I found this article relating to the increase of the ABV from 6% to 12% in 2009: Examiner is back - Examiner.com

Wonder if the original thought was that 6% was OK to drink in a car, and they never updated the open container law after the definition was changed to 12%.

4

So, wait… Am I reading this right? Any beer up to 12% ABV (which is a damned friggin strong beer that will take some effort to find. You’re looking at imperial stouts and barleywines here) are considered “nonintoxicating beers” in West Virginia? That can’t be right…can it?

5

This is baffling. Anything under nine percent alcohol’s considered non-intoxicating? IIRC the Federal government still considers anything over .5% to be intoxicating, and taxable.

6

Apparently WV thinks different, though, and it’s not the Federal government’s business to regulate. They can only provide incentives, such as SAFETEA-LU, for the states to regulate it in a way the Federal government would like. They’d have to amend the constitution to actually regulate it, as they did with Prohibition.

7

Thanks all, especially Teletype. I can never get an answer to this question other than “It’s best not to drink and drive.” I noticed this discrepancy in the law several years ago, but the State Police still use the “it’s legal for passengers, but not a driver” to drink answer.

I’m almost tempted to call the media and the state police and drive on a rural road with a beer in the vehicle. I would take a sip if needed and see what plays out. :wink: