Does Georgia's 'doggy bag' wine law jeopardize $27 million in federal highway funding under the federal open container law?

Plain-English summary

The Georgia DOT Commissioner asked whether 2008's Senate Bill 55 (the "doggy bag" wine law) would cost the state $27 million a year in federal highway funding under the federal open container statute. SB 55 amended O.C.G.A. § 40-6-253(a)(2) to say 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." On its face, that exception conflicts with 23 U.S.C. § 154(b), which requires every state to prohibit possession of any open alcoholic beverage container in a passenger compartment as a condition of receiving federal highway safety funds. The federal statute does not recognize a "resealed bottle" exception.

The Attorney General resolved the apparent conflict through statutory construction. The new wine law (§ 3-6-4) does not just allow resealing; it requires that the resealed bottle "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." That transportation requirement matches 23 C.F.R. § 1270.4(d), the federal exception for vehicles without trunks. The AG read § 3-6-4 and § 40-6-253 together as creating a single integrated rule: yes, a resealed bottle is not an "open container" for Georgia purposes, but only if transported in the locked-or-behind-last-seat way the federal rule allows. Read that way, Georgia complies with federal law, and the $27 million stays in DOT.

The opinion concedes there is a strict-construction-of-criminal-statutes argument against this reading, but counters that incorporating one Code section into another by reference does not violate strict construction, and that the General Assembly is presumed to enact law with knowledge of existing law. The court would harmonize the two statutes to preserve both, not let SB 55 silently repeal Georgia's compliance with federal open container rules.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is the federal open container law and how much money is at stake?
A: 23 U.S.C. § 154 conditions a portion of federal highway safety grants on the state having an open container law that meets specific federal criteria. States that fail compliance see funds transferred to other safety programs (alcohol-impaired-driving countermeasures, hazard elimination). The Commissioner identified the at-stake amount as approximately $27 million annually.

Q: What does the federal open container law require?
A: Under 23 C.F.R. § 1270.4, the state law must (a) prohibit possession of open containers and consumption of alcohol in the passenger area, (b) cover all alcoholic beverages, all occupants, and all motor vehicles on a public highway, and (c) provide for primary enforcement (an officer can stop a vehicle solely on the open container violation). The exception in (d) allows transport in a locked glove compartment, a locked trunk, or behind the last upright seat of a vehicle without a trunk.

Q: Why did Georgia create the resealed-wine exception?
A: SB 55 was a restaurant-industry friendly bill, often called a "doggy bag" wine law. It allowed restaurants to reseal partially-finished bottles for customers to take home, with specific protocols (visible tamper indicators, dated receipt attached, etc.). The goal was to encourage moderation in restaurant wine consumption and let customers take home unfinished bottles without facing open container exposure.

Q: How did the AG harmonize the two statutes?
A: By reading § 3-6-4 as part of § 40-6-253, not as a contradiction of it. Section 3-6-4 spells out resealing requirements AND a transportation requirement (locked glove box, locked trunk, or behind last upright seat). Those transportation rules track the federal regulation's exception. So the only resealed bottles that escape the open container statute are ones transported the way the federal rule already permits. No federal compliance gap.

Q: Did the AG cite case law for this kind of statutory harmonization?
A: Yes. Billbrey v. State (1985) involved reading speed-related statutes together to give them sufficient definiteness. Neiswonger v. Janics (1990) involved reading two driving statutes together to define a violation. The opinion uses both to support the principle that two statutes covering related subject matter should be construed in harmony.

Q: What about the strict construction rule for criminal statutes?
A: The opinion acknowledges McGonagil v. Treadwell (1995) on strict construction. The AG argues that incorporating one Code section into another by reference does not violate strict construction, because the defendant has notice of both statutes. State v. Velazquez (2008) provides the rule that legislatures are presumed to enact statutes with knowledge of existing law.

Q: Is the resealed bottle still subject to other rules?
A: Yes. Section 3-6-4 itself imposes specific resealing protocols: the licensee or its employees must reseal, the bottle must be in a tamper-evident bag or container, and a dated receipt for the bottle and a meal must be attached. A bottle handed over by an unlicensed party, or without a meal receipt, would not qualify for the exception even if transported correctly.

Background and statutory framework

The federal-state interaction here is typical of conditional spending under the Spending Clause. Congress sets a federal-funding condition (a state open container law meeting specific criteria), and states retain freedom to choose their own laws but face money loss if they pick differently. The AG's job is to find a reading of state law that preserves the federal money where possible.

The 2008 Georgia bill came out of a multi-year effort by the restaurant industry to allow take-home of partially consumed wine. The drafting deliberately tracked the federal exception language, putting the locked-glove-compartment / locked-trunk / behind-rearmost-upright-seat language into § 3-6-4. The AG's reading just makes that drafting decision do its work.

The opinion's broader contribution is its willingness to read § 40-6-253(a)(2)'s "shall not constitute an open alcoholic beverage container" exception narrowly, by reference to § 3-6-4's transportation requirements. A more literal reading (a resealed bottle simply isn't an open container, period) would have taken Georgia out of federal compliance and triggered the $27 million transfer. By construing the two sections together, the AG kept Georgia on the federal grant list while still letting the restaurant industry keep its take-home wine law.

This is also a classic example of an AG opinion that operates as advance counsel: the Commissioner needed to know whether Georgia would be deemed compliant before the federal compliance certification deadline. The AG's official opinion gives state actors and federal regulators a reasoned basis for treating Georgia as compliant.

Citations and references

Federal authorities:
- 23 U.S.C. § 154(b), federal open container law
- 23 C.F.R. § 1270.4, implementing regulations
- 23 C.F.R. § 1270.4(d): exception for locked glove compartment, locked trunk, or behind last upright seat

Georgia statutes:
- O.C.G.A. § 40-6-253, Georgia open container law
- O.C.G.A. § 40-6-253(a)(2), definition of "open alcoholic beverage container" with resealed-wine exception
- O.C.G.A. § 3-6-4: resealing protocols for take-home bottles of wine

Cases:
- Billbrey v. State, 254 Ga. 629 (1985), reading related statutes together for definiteness
- Neiswonger v. Janics, 196 Ga. App. 607 (1990), same principle in driving context
- McGonagil v. Treadwell, 216 Ga. App. 850 (1995), strict construction of criminal statutes
- State v. Velazquez, 283 Ga. 206 (2008), General Assembly presumed to know existing law

Legislation:
- Senate Bill 55 (2008 Ga. Laws 834): resealed-bottle exception

Source

• Landing page: https://law.georgia.gov/opinions/2008-7
• Original PDF: not linked from landing page

Original opinion text

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 alcoholic 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 passenger in a motor vehicle that is not equipped with a trunk, the State shall be deemed to have in effect a law that applies to the passenger area of any vehicle, as provided in paragraph (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. See State v. 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 [1] O.C.G.A. § 40-6-180 provides that "[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. Consistently with the foregoing, every person shall drive at a reasonable and prudent speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching and traversing a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions." [2] O.C.G.A. § 40-6-181(a) provides that "[t]he limits specified in this Code section or established as authorized in this article shall be the maximum lawful vehicle speeds, except when a special hazard exists that requires a lower speed for compliance with Code Section 40-6-180."