South Dakota Open Container Law (2026): SDCL 35-1-9.1 Explained

South Dakota makes it a Class 2 misdemeanor for any vehicle occupant, driver or passenger, to consume alcohol or possess an open container of alcohol in a vehicle on a public highway, under SDCL § 35-1-9.1. As of September 2026, the operative text was confirmed live against the state's official code site.

Jurisdiction scope: This article addresses South Dakota's state open container law, SDCL Section 35-1-9.1, covering possession and consumption by any vehicle occupant. It does not address South Dakota's DUI laws in detail. For South Dakota's DUI penalties, see South Dakota DUI laws.

What South Dakota's Open Container Law Prohibits

South Dakota's statute combines a consumption ban and a possession ban into a single sentence. The official text reads:

"It is a Class 2 misdemeanor for any person occupying a motor vehicle located upon a public highway or the right-of-way of a public highway to consume any alcoholic beverage or have a package or any receptacle containing an alcoholic beverage in that person's possession unless the seal of the original package remains unbroken or the alcoholic beverage is so removed from the passenger area of the motor vehicle that no occupant of the motor vehicle has access to it."

SDCL § 35-1-9.1

Unlike states that write separate clauses for the driver and for passengers, South Dakota's rule attaches to "any person occupying" the vehicle, so a passenger who drinks or holds an open container is just as much in violation as a driver who does. The offense applies on a public highway or its right-of-way, which covers the road itself and the adjoining strip the highway authority controls, not private property.

Exemptions

SDCL Section 35-1-9.1 itself exempts two circumstances:

• The seal of the original package remains unbroken.
• The alcoholic beverage has been removed from the passenger area of the vehicle so that no occupant has access to it.

A separate section, SDCL Section 35-1-9.3, titled "Certain situations not in violation of § 35-1-9.1," adds three more exceptions that are not part of Section 35-1-9.1's own text but still take a beverage outside the ban:

• An alcoholic beverage located in a locked glove compartment, even though the glove compartment sits within reach of the driver or passengers.
• An open beverage kept behind the last upright seat of a vehicle that has no trunk, or in an area not normally occupied by the driver or passengers.
• A passenger, but not the driver, riding in a motor vehicle operated by a licensed carrier possessing an open beverage; the carrier's driver remains barred from an opened package in the driver's compartment.

Because Section 35-1-9.3 names specific compartments rather than testing only whether an occupant can reach the beverage, a beverage can be exempt under it, such as one locked in the glove compartment, even in a spot the driver or a passenger could otherwise reach.

Penalty

A violation of SDCL § 35-1-9.1 is a Class 2 misdemeanor. The section itself does not state a dollar fine or jail term; those come from South Dakota's general misdemeanor penalty statute, SDCL § 22-6-2, which caps a Class 2 misdemeanor at 30 days of imprisonment in a county jail, a $500 fine, or both.

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. States that fall short have 2.5 percent of certain federal highway apportionments reserved and redirected to highway safety programs, under FHWA's annual apportionment notice. South Dakota's statute meets those elements, so South Dakota 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.

Related reading: open container laws by state, South Dakota DUI laws, and South Dakota window tint laws.

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 South Dakota?

Generally no. SDCL Section 35-1-9.1 bans any person occupying a vehicle on a public highway from consuming alcohol or possessing an open container of it, and it applies equally to the driver and every passenger. SDCL Section 35-1-9.3 carves out one exception: a passenger, but not the driver, in a vehicle operated by a licensed carrier may possess an open beverage.

Is it legal to have an unopened bottle of alcohol in the car in South Dakota?

Yes. The statute exempts a container whose original seal remains unbroken, regardless of where in the vehicle it is stored.

Can I put an open container in the trunk in South Dakota?

Yes. SDCL Section 35-1-9.1 exempts an alcoholic beverage removed from the passenger area so that no occupant has access to it, which covers a trunk, and SDCL Section 35-1-9.3 separately exempts a beverage kept behind the last upright seat of a vehicle with no trunk, in an area not normally occupied by the driver or passengers, or locked in the glove compartment.

What is the penalty for an open container violation in South Dakota?

A violation is a Class 2 misdemeanor. Under SDCL Section 22-6-2, a Class 2 misdemeanor carries up to 30 days in a county jail, a fine of up to $500, or both.