Delaware
Delaware Open Container Law (2026): No Possession Ban
Independently fact-checked against primary sources (last audited September 23, 2026). · 3 primary sources cited on this page. How we verify our legal content
Delaware has no law against simply having an open alcoholic beverage container in a vehicle. The state's only related rule, 21 Del. C. Section 4177J, bans the driver from drinking alcohol while driving, and only when that happens in the presence of, or view of, a police officer. As of September 2026, that remains the current state of Delaware law; a 2023 bill that would have added a possession ban did not pass.
Information last verified on 2026-09-16. This article has not yet been reviewed by a licensed lawyer.
Jurisdiction scope: This article addresses Delaware's state open container law under 21 Del. C. Section 4177J. It does not address DUI charges or local ordinances. For Delaware's separate DUI penalties, see Delaware DUI laws.
What Delaware's Law Actually Bans
Section 4177J bans a driver from consuming an alcoholic beverage while driving a vehicle, but it adds a condition most other states' driver-drinking statutes do not have: the consumption has to occur in the presence of, or in the view of, a police officer. The statute reads, in relevant part: "No person shall consume an alcoholic beverage while driving a motor vehicle upon the highways of this State. 'Consume,' as used in this subsection, shall mean the ingestion of a substance containing alcohol while in the act of operating a motor vehicle in the presence of, or in the view of, a police officer." The statute does not ban simply having an open, unsealed container in the vehicle if no one is drinking from it, and it does not reach a passenger's conduct at all.
Why There's No Possession Offense
Delaware has no statute banning mere possession of an open alcoholic beverage container by a driver or a passenger. Neither does the state have any provision covering a passenger's own drinking. Section 4177J is narrowly written around the driver's act of consumption, observed by an officer, and nothing broader fills that gap in current Delaware law.
Penalty
A first violation of Section 4177J carries a fine of $25 to $200. A second or subsequent violation within one year of the first carries a fine of $50 to $400. The statute is not classified by degree; it is a fine-only offense.
The 2023 Bill That Didn't Pass
House Bill 119 of the 152nd General Assembly, introduced in 2023, would have amended Title 21 to ban open containers of alcohol in motor vehicles generally, with a civil penalty and no effect on the driver's record. The bill passed the Delaware House on a 28 to 11 vote but was referred to the Senate Corrections & Public Safety Committee in June 2023 and never received further action before the General Assembly's session ended. It was never enacted, so it made no change to Delaware's open container law, and the narrow driver-only, officer-presence rule in Section 4177J remains the only statute on the books.
Federal Non-Conformance
Federal law, 23 U.S.C. Section 154, ties a share of a state's highway funding to having an open container law that bans both possession and consumption for every occupant of a vehicle. Delaware is one of 12 states FHWA has determined do not meet that standard for fiscal year 2026 (FHWA Notice N4510.905, dated October 1, 2025). FHWA's notice does not state a reason for any individual state's listing; based on comparing 4177J against the federal standard, Delaware's law bans neither possession nor unconditioned consumption, which appears to be why. Delaware has 2.5 percent of certain federal highway apportionments reserved and, absent a compliant law, redirected to highway safety programs.
For how this rule compares with every other state, see the open container laws by state comparison.
Disclaimer: This article provides general legal information about open container laws in the United States as of September 2026. It is not legal advice. Open container statutes, exemptions, and penalties change; verify the current text of your state's law before relying on it, and consult a lawyer licensed in your state for advice about a specific situation.
Related Articles
Statutes cited reflect their in-force version as of 2026-09-16. Last updated: 2026-09-16.
Frequently Asked Questions
Is it illegal for a passenger to have an open container of alcohol in Delaware?
No. Delaware has no statute banning open-container possession by a driver or a passenger; its only related law, 21 Del. C. Section 4177J, bans only a driver's act of drinking while driving, and only when an officer witnesses it.
Did Delaware pass an open container law recently?
No. House Bill 119 (2023) would have created a possession ban, but it died in a Senate committee after passing the House and was never enacted. Delaware's law is unchanged.
What is the fine for violating Delaware's open container statute?
Under 21 Del. C. Section 4177J, a first offense carries a $25 to $200 fine, and a repeat offense within one year carries a $50 to $400 fine.
Why is Delaware on the federal open container non-compliance list?
Federal law under 23 U.S.C. Section 154 requires a possession-and-consumption ban covering every vehicle occupant. FHWA's notice does not state a reason for any individual state's listing; based on comparing Delaware's law to the federal standard, Delaware's statute bans neither possession nor unconditioned consumption, which appears to be why FHWA lists it as non-conforming for fiscal year 2026.
Updates
Independently fact-checked against the cited primary sources
Independently fact-checked against the cited primary sources
The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
Delaware Code, Title 21 (Motor Vehicles), Chapter 041 (RULES OF THE ROAD)
§ 4177JDrinking while driving prohibited.In forcecited in 2 of our articles
(a) No person shall consume an alcoholic beverage while driving a motor vehicle upon the highways of this State. “Consume,” as used in this subsection, shall mean the ingestion of a substance containing alcohol while in the act of operating a motor vehicle in the presence of, or in the view of, a police officer. (b) Whoever violates this section shall be fined for the first offense not less than $25 nor more than $200. For each subsequent like offense occurring within 1 year of the previous offense, the person shall be fined not less than $50 nor more than $400.
Official text (excerpt) · last checked 2026-09-23 · Read the full text in our law library · Verify at delcode.delaware.gov
Also relied on in: Open Container Laws by State (2026): Passengers, Exemptions, Penalties
§ 4177Driving a vehicle while under the influence or with a prohibited alcohol or drug content; evidence; arrests; and penalties.In forcecited in 2 of our articles
(a) No person shall drive a vehicle: (1) When the person is under the influence of alcohol; (2) When the person is under the influence of any drug; (3) When the person is under the influence of a combination of alcohol and any drug; (4) When the person’s alcohol concentration is .08 or more; or (5) When the person’s alcohol concentration is, within 4 hours after the time of driving .08 or more. Notwithstanding any other provision of the law to the contrary, a person is guilty under this subsection, without regard to the person’s alcohol concentration at the time of driving, if the person’s alcohol concentration is, within 4 hours after the time of driving .08 or more and that alcohol concentration is the result of an amount of alcohol present in, or consumed by the person when that person was driving; (6) When the person’s blood contains, within 4 hours of driving, any amount of an illicit or recreational drug that is the result of the unlawful use or consumption of such illicit or recreational drug or any amount of a substance or compound that is the result of the unlawful use or consumption of an illicit or recreational drug prior to or during driving.
Official text (excerpt) · last checked 2026-09-05 · Read the full text in our law library · Verify at delcode.delaware.gov
Cited in 188 court opinions in our collectionLatest citing opinion in our collection: 2026
Opinions citing this section in our collection:
- State v. Maxwell (Supreme Court of Delaware 1993, 624 A.2d 926)“…ontent exceeding one tenth of one percent. See 21 Del.C. § 4177. Procedural History…”
- Hunter v. State (Supreme Court of Delaware 1980, 420 A.2d 119)“…tent of the victim or by failing to instruct the jury under 21 Del.C. § 4177(a). [5] We find no error in this conne…”
- State v. Ruthardt (Superior Court of Delaware 1996, 680 A.2d 349)“…1994, and charged with Driving While Under the Influence, 21 Del.C. § 4177, and various other motor vehicle violat…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Delaware DUI Laws: Penalties, BAC Limit & License (2026)
United States Code Title 23
§ 154Open container requirementsIn forcecited in 46 of our articles
In this section, the following definitions apply: The term “alcoholic beverage” has the meaning given the term in section 158(c). The term “motor vehicle” means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public highways, but does not include a vehicle operated exclusively on a rail or rails. The term “open alcoholic beverage container” means any bottle, can, or other receptacle— that contains any amount of alcoholic beverage; and that is open or has a broken seal; or the contents of which are partially removed. The term “passenger area” shall have the meaning given the term by the Secretary by regulation. For the purposes of this section, 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.
Official text (excerpt) · last checked 2026-09-23 · Read the full text in our law library · Verify at uscode.house.gov
Cited in 20 court opinions in our collectionLatest citing opinion in our collection: 2004
Opinions citing this section in our collection:
- Foremost Insurance v. Richardson (Supreme Court of the United States 1982, 457 U.S. 668)“…er traffic, just as it has done for some land traffic. See 23 U. S. C. § 154 (55 m.p.h. speed limit). Yet no one su…”
- United States v. Kevin Bishop, United States of America v. Edward Stokes (Court of Appeals for the Third Circuit 1995, 66 F.3d 569)“…nder the Spending Clause, not the Commerce Clause. See 23 U.S.C. § 154 (Supp.1995) (conditioning receipt of f…”
- Mrs. Lizzie Beatrice Easterwood v. Csx Transportation, Inc. (Court of Appeals for the Eleventh Circuit 1991, 933 F.2d 1548)“…ce with the national highway speed limit. See 23 U.S.C.A. § 154 (1990). Easterwood argues that an auto…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
Also relied on in: Maine Open Container Law (2026): Statute and Exemptions, Alabama Open Container Law (2026): The $25 Fine and No-Points Rule, Arkansas Open Container Law (2026): Rules, Exemptions, and Penalty
Search our full record of US law — 2.1 million sections, every state + federal →
Sources and References
- 21 Del. C. § 4177J - Drinking while driving prohibited(delcode.delaware.gov).gov
- Delaware House Bill 119 (152nd General Assembly, 2023) - bill detail and status(legis.delaware.gov).gov
- 23 U.S.C. § 154(a) - Open container requirements(law.cornell.edu)
- FHWA Notice N4510.905 - FY2026 Apportionment of Federal-Aid Highway Program Funds (open container non-conforming states list)(highways.dot.gov).gov