COMMONWEALTH vs. BERNADETTE CASEY.

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 s. 56-1 of the Fitchburg General Ordinances, making it a criminal offense to possess an "opened container full or partially full of [an] alcoholic beverage ...." Casey was convicted of violating that ordinance. Prior to trial, the defendant moved for dismissal of the complaint "[o]n constitutional grounds...." A District Court judge denied the motion and, after a jury-waived trial before a different judge, the defendant was found guilty.

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At issue is not whether s. 56-1 is facially unconstitutional -- that challenge was rejected in Commonwealth v. Lammi, 386 Mass. 299 (1982) [Note 1] -- 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 (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

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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 (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 (1926). See also Commonwealth v. Walter, 388 Mass. 460, 465 (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. Jarrett, 359 Mass. 491, 496 (1971). Another principle involved in the determination as to whether a statute survives a vagueness challenge allows a court to go beyond the words of the statute. "A sufficiently definite warning may be achieved by judicial construction, common law meaning, or the statutory history of particular terms." Commonwealth v. Gallant, 373 Mass. 577, 581 (1977). Courts have upheld vagueness challenges against statutes susceptible to varying interpretations depending upon the individual, or which vest total discretion in the hands of the police. See Kolender v. Lawson, 461 U.S. 352, 358-361 (1983) (statute requiring individual to provide "credible and reliable" identification when requested by police officer rests excessive discretion in hands of police to determine whether individual has complied); Commonwealth v. Carpenter, 325 Mass. 519, 520 (1950) (statute directing that "[n]o person shall, in a street . . . unreasonably saunter or loiter for more than seven minutes after being directed by a police officer to move on" forced both people and law enforcement officers to guess at meaning of "unreasonable"); Commonwealth v. Stark, 365 Mass. 195 (1974) (statute making it criminal to "treat contemptuously" the flag of the United States); Commonwealth v. Sefranka, 382 Mass. 108 (1980) (prohibition against "lewd, wanton and lascivious" speech or behavior meaningless without attendant definitions of specific conduct

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proscribed); American Dog Owners Assn., Inc. v. Lynn, 404 Mass. 73 (1989) (ordinance restricting ownership of certain breed of dog vague because it left law enforcement officials without ascertainable standards by which to enforce it). These standards apply equally to municipal ordinances. Commonwealth v. Williams, 395 Mass. 302, 303-304 (1985).

While the ordinance in the case at bar could have been drafted with greater precision to prohibit possession of an opened container with ready availability to consume, such conduct may be fairly understood. [Note 2] If the meaning of a statute can be ascertained by "reference to similar or related statutes," it is not vague. Commonwealth v. Arthur, 420 Mass. 535, 539 (1995). Indeed, G. L. c. 90, s. 241, inserted by St. 1982, C.373, s. 10, proscribes operation of a motor vehicle on a public way "while drinking from an 'open' container of any alcoholic beverage." We believe persons of "common intelligence" would understand that the ordinance subjects them to prosecution if they operate a motor vehicle and store a half-empty and unsealed bottle of liquor within easy reach. The ordinance was validly applied in this instance because the defendant's conduct was within a prohibited "core of condemned conduct" well understood by the ordinary citizen. [Note 3] See Commonwealth v. Love, 26 Mass. App. Ct. 541, 545

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(1988); Commonwealth v. Benoit, 26 Mass. App. Ct. at 646. [Note 4]

The defendant's use of the overbreadth doctrine to assert her rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights is misplaced. [Note 5] The test is a cognate yet separate analysis from the "vagueness" theory. A statute may be clear and precise but may be overbroad because it prohibits constitutionally protected conduct. Commonwealth v. A Juvenile, 368 Mass. 580, 586 n.4 (1975). See Smith, Criminal Practice & Procedure s. 6 (2d ed. 1983). Overbreadth challenges are by nature facial challenges. Courts created the overbreadth doctrine to provide a forum for "those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution...." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985). When the language of a statute threatens rights protected by the First Amendment to the Constitution of the United States, a litigant against whom the statute has been improperly applied may challenge the constitutionality of the statute for the benefit of those whose expression may be chilled. Brockett, 472 U.S. at 503. However, no court, to our knowledge, has declared a statute overbroad on the basis, as argued here, that in applying the law, the police conducted an illegal search and seizure.

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There was no error in denying the motion to dismiss the complaint.

Judgment affirmed.