New Mexico Open Container Law (2026): Statute and Penalty

New Mexico bans both drinking and knowingly possessing an open container on the person's body while in a motor vehicle on a public highway, and the ban reaches every occupant, not just the driver, under NMSA 1978, § 66-8-138. This article reflects the statute as in force as of September 2026.

Jurisdiction scope: This article addresses New Mexico's state open container law, covering driver and passenger possession and consumption, under NMSA 1978, § 66-8-138. It does not address DUI charges or rules for boats. For New Mexico's separate DUI penalties, see New Mexico DUI laws.

What New Mexico's Open Container Law Prohibits

Section 66-8-138 bans two things for "no person," language that reaches the driver and every passenger equally: subsection (A) bans knowingly drinking an alcoholic beverage while in a motor vehicle on a public highway, and subsection (B) separately bans knowingly possessing an open container on the person's body while in a motor vehicle on a public highway. Subsection B's possession ban is limited to a container carried on someone's body; an open container sitting in a cupholder or on the seat, not on anyone's body, is not a subsection B offense by itself. Because the statute is written around "no person" rather than singling out the driver, a passenger in New Mexico cannot legally drink in a moving vehicle, unlike states where only the driver's consumption is regulated.

Subsection (C) adds a further, distinct duty that falls on the vehicle's registered owner alone: the owner must not knowingly keep or allow an open alcoholic beverage container to be in the vehicle while it is on a public highway. That duty applies whether or not the owner is present in the vehicle, and it is separate from the on-the-body possession ban in subsection (B).

What Counts as the Occupied Area

For purposes of subsection C's owner duty, New Mexico treats a utility or glove compartment as part of the vehicle's occupied area, not a safe harbor for an open container.

Exemptions

Subsection (C)'s registered-owner duty does not apply if the open container is kept in:

• The trunk of the vehicle, or, in a vehicle with no trunk, another area not normally occupied by the driver or passengers.
• The living quarters of a motor home or recreational vehicle.
• A truck camper.
• The bed of a pickup truck, when it is not occupied by passengers.

Separately, subsection (D) exempts the entire section for a passenger, but not the driver, of a bus, taxicab, or limousine for hire licensed under New Mexico's Motor Carrier Act or other proper legal authority.

Local Ordinances and Repeat Offenses

A New Mexico municipality may prescribe its own ordinance penalties for possessing or consuming alcohol while driving. A conviction under one of these municipal ordinances still counts toward a person's tally of second, third, or subsequent offenses under the state statute, so a local citation is not a separate track that resets the count.

Penalty

A violation of Section 66-8-138, including a first offense, is a misdemeanor. NMSA 1978, § 66-8-7(A) makes it a misdemeanor to violate any provision of the Motor Vehicle Code unless the violation is declared a felony, and Section 66-8-138 does not declare a felony. Section 66-8-7(B) then sets the default sentence for that misdemeanor: a fine of not more than $300, or imprisonment of not more than 90 days, or both, unless another penalty is specified elsewhere in the Motor Vehicle Code. Another penalty is specified for a first offense: NMSA 1978, § 66-8-116(A) lists a first violation of Section 66-8-138 in its penalty assessment schedule at $25, an amount an arresting officer can offer in lieu of a court appearance under § 66-8-117. A second or subsequent violation is sentenced the same way, under § 66-8-7 by way of § 66-8-139(A), and New Mexico revokes a violator's driver's license for 3 months after a second violation, and 1 year after a third or later violation, under § 66-8-139(B).

Federal Compliance

Federal law, 23 U.S.C. § 154, conditions a share of a state's highway funding on having an open container law that bans both possession and consumption, covers the whole passenger area, reaches every occupant, and is primarily enforced. A state that falls short has 2.5 percent of certain federal highway apportionments reserved and redirected to highway safety programs, under FHWA's annual apportionment notice. New Mexico is not on FHWA's list of non-conforming states for fiscal year 2026 (FHWA Notice N4510.905, dated October 1, 2025).

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.

For how New Mexico's rule compares with every other state, see the full rundown of open container laws by state.

Statutes cited reflect their in-force version as of 2026-09-16. Last updated: 2026-09-16.

Frequently Asked Questions

Can a passenger drink alcohol in a car in New Mexico?

No. NMSA 1978, § 66-8-138(A) bans drinking by "no person" while in a motor vehicle on a public highway, which covers passengers as well as the driver.

Is the glove compartment a safe place for an open container in New Mexico?

No. New Mexico treats a utility or glove compartment as part of the vehicle's occupied area, so storing an open container there does not exempt it.

What is the fine for a first open container offense in New Mexico?

A first offense carries a $25 penalty assessment under NMSA 1978, Section 66-8-116(A), which an officer can offer in lieu of a court appearance. Every violation, including a first offense, is a misdemeanor under Section 66-8-7(A), which sets a default fine of up to $300, or up to 90 days in jail, or both, for a Motor Vehicle Code misdemeanor unless another penalty is specified, and the $25 penalty assessment is that specified penalty for a first offense. A second or subsequent violation is sentenced the same way under Section 66-8-139(A), plus a license revocation of 3 months, or 1 year for a third or later violation.

Are bus or taxi passengers exempt from New Mexico's open container law?

Yes, a passenger, but not the driver, of a for-hire bus, taxicab, or limousine licensed under the Motor Carrier Act or other proper legal authority is exempt under NMSA 1978, § 66-8-138.