Do you have to be drunk to the point where you fail a BAC/field sobriety test, or can the police arrest you on the basis that someone saw you drinking beer while driving? I know in the US, state laws determine whether simply drinking while driving is a felony. IMO, it should be a felony in every state. Just because someone who is drinking isn't drunk enough to do some damage doesn't mean they won't be later on. The driver could be planning to drink more beer after the police officer leaves him/her alone.