 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Com. v. Casey4/23/1997
Due Process of Law, Vagueness of ordinance. Municipal Corporations, By-laws and ordinances. Alcoholic Liquors, Possession of opened bottle.
GREENBERG, J. Bernadette Casey, the defendant, concedes that before a Fitchburg police officer found her seated inside her car parked across from city hall, she had been driving under the influence of intoxicating liquor. The question she raises on appeal is whether she could properly be prosecuted for violation of § 56-1 of the Fitchburg General Ordinances, making it a criminal offense to possess an "opened container full or partially full of alcoholic beverage. . . ." Casey was convicted of violating that ordinance. Prior to trial, the defendant moved for dismissal of the complaint "on constitutional grounds. . . ." A District Court Judge denied the motion and, after a jury-waived trial before a different Judge, the defendant was found guilty.
At issue is not whether § 56-1 is facially unconstitutional -- that challenge was rejected in Commonwealth v. Lammi, 386 Mass. 299, 435 N.E.2d 360 (1982) -- but whether the ordinance is unconstitutionally vague as applied to the defendant's conduct. She contends that her motion to dismiss the complaint should have been allowed because the ordinance was not "sufficiently clear to give notice of the conduct that it prohibits," Commonwealth v. Bohmer, 374 Mass. 368, 371, 372 N.E.2d 1381 (1978), and cases cited, or, that it should be declared "overbroad as applied" in this case.
There is agreement concerning the underlying events. Casey drew the attention of an off-duty Fitchburg police officer when she nearly struck the back end of his car as he drove along Main Street. Fortunately she missed causing an accident and pulled into a nearby parking space. Two pedestrians saw her walking around her vehicle as if intoxicated. In fact she was drunk and passed out on the sidewalk. By the time an ambulance crew arrived to assist, she had managed to get back inside her car but appeared "totally incoherent." Just after the crew removed her from the scene and took her to the hospital, another officer, who was sent to inventory the vehicle, found an insulated bag between the front seats. Inside the bag he found ice cubes around a half-empty, capped bottle of "Sambuca" liquor. The officer seized the bottle as part of the inventory, and then called for a tow truck.
The defendant argues that the ordinance is vague as it did not fairly place her on notice that a Judge could find the act of placing a capped bottle of liquor, inside a receptacle, between the seats of her car to be criminal . In particular, she contends that the city of Fitchburg intended the ordinance as written, to be enforced against persons who actually engage in public drinking or literally have an open container of alcohol on their persons while in or on a public way.
Determining whether a statute or ordinance survives a vagueness challenge involves the application of settled principles. See Commonwealth v. Benoit, 26 Mass. App. Ct. 641, 646, 531 N.E.2d 262 (1988). A statute defining a criminal offense violates due process when the conduct prohibited or commanded is expressed in terms "so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application. . . ." Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926). See also Commonwealth v. Walter, 388 Mass. 460, 465, 446 N.E.2d 707 (1983). On the other hand, "the Constitution does not require impossible standards, that [are violated by] mere difficulty in determining whether certain marginal offences are within the meaning of the language under attack as vague . . . ." Commonwealth v. Jarret
Page 1 2 3 Massachusetts DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|