Could police charge a driver with an open-container violation in an unposted South Carolina parking lot?

Plain-English summary

Ehrhardt’s police chief asked about a person parked in a lot that lacked signs announcing police jurisdiction. The Attorney General concluded in 2009 that an open-container charge under Section 61-4-110 could not be brought in that situation. The opinion read that statute’s beer-and-wine prohibition as limited to public highways and highway rights of way, and it pointed to the posting requirement for extending traffic-law enforcement into a public parking lot.

Currency note

This opinion was issued in 2009. 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: Did this opinion treat every parking lot like a public highway for open-container charges? A: No. It held that the charged person in an unposted parking lot could not be charged under the statute discussed.

Q: Why did the parking lot’s signs matter?
A: The opinion cited Section 23-1-15, which required signs informing the public that an open-to-public parking lot was subject to police jurisdiction for unlawful motor-vehicle operation.

Background and statutory framework

The inquiry was confined to an open-container charge for a person parked in an unposted lot. The Attorney General read the open-container provision’s highway language together with the parking-lot posting rule and answered that specific charging question. The opinion did not decide other possible offenses or facts.

Citations and references

Statutes: Section 61-4-110; Section 23-1-15.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-9-2009-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/preacher-j-a-jr-os-8741-3-9-09-opend-container-offense.pdf

Original opinion text

l-l iiNRY M C M ASTER
A'l'IURN l~Y V ENl: RAI.

March 9, 2009

Via: U.S. Mail and Facsimile - {803) 267-7700
James A. Preacher, Jr., Chief of PoJjce
Ehrhardt Police Department
P. 0 . Box 185
Ehrhardt. South Carolina 2908 1
Dear Chief Preacher:
In a letter to this office you questioned whether an individual can be charged with the offense of open container, a violation of S.C. Code Ann. § 6 1-4-110, where he is parked in a parking lot that is not posted as being under pol ice jurisdiction. Section 61-4- 11 0 states that
[i]t is unlawful for a person to have in his possession, except in the trunk or l uggage compartment, beer or wine in an open container in a motor veh icle of any kind while located upon the public highways or highway rights of way of this State ..... (emphasis added). S.C. Code Ann. § 23-1 -1 5 states that
[a]ny real property which is used as a parking lot and is open to use by the public fo r motor vehicle traffic shall be within the police jurisdiction with regard to the unlawful operation of motor vehicles in such parking lot. Such parking lots shall be posted with appropriate signs to infonn the public that the area is subj ect to police jurisdiction with regard to unlawful operation of motor vehicles ... In any such area the law enforcement agency concerned shall have the authority to enforce all laws or ordinances relating to the unlawful operation of motor vehicles which such agency has with regard to public streets and highways immediately adjoining or connecting to the parking area. (emphasis added).
[n the opinion of this office, inasmuch as Section 6 1-4-l I 0 is restricted to the possession of beer or wine "while located upon the public highways or highway rights of way of this State" and Section 23-1-15 requires posting of a parking lot in order to "enforce all laws or ordinances relating to the unlawful operation of motor vehicles which such agency has with regard to public streets and

R eMOElff

c. DENNIS B UILDING • POST 0FRCE B ox 11 549 • COLUMOJA. SC 292 11-1549 • T ELl:PllONE 803-734-3970 • FACS IMILE 803-253-6283

Chief Preacher
Page 2
March 9, 2009

highways immediately adjoining or connecting to the parking lot", an individual could not be charged with an open container violation under Section 61-4-110 if he is found parked in a parking lot that is not posted pursuant to Section 23-1-15. With kind regards, I am, Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General