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C.S. Lewis on Misunderstanding Fantasy Essay. The early decades of the last century saw the loss of credibility of fantasy literature among the academic elite who ruled it a popular genre with little to no scholarly merit. Little that had had the misfortune of being dubbed fantasy had escaped the contest blacklist cast upon the field. Case. Many critics had also labeled the rights fantasy genre as largely cliche, full of shallow characters, and as having no value beyond being purely escapist entertainment. These generic labels, applied wholesale to fantastic literature, had pushed it off the show more content Heave in Hell in essay C.S. Lewis? The Great Divorce Essay. In his novel The Great Divorce, C.S. Lewis depicts two settings: one of a grey town where whatever you want is essay contest, provided for you and another of grand pasture. These settings, in the book, represent Heaven in tsi writing Hell in a way, depending on which character's perspective the nra civil places are viewed from. Case Studies Houses. However, the places that the main character visits and rights essay contest, the journey that he takes is one that can be used to model the journey of our spiritual walk.

Similar to how the book essay protagonist starts in a bleak town then Essay on C.S. Rights Essay Contest. Lewis: Mere Christianity. applies to the whole universe and to God. Lewis states; “Almost certainly God is not in Time. His life does not consist of moments following one another.” C.S. Pleasure Essay. Lewis believes that it is nra civil rights essay, always the present for God. God can see everything past and future as the case studies present. Nra Civil Essay Contest. Also since God is not in time he is not constrained by time. He can hear all prayers and attend to them individually. He then moves on to discuss God as the Father and the Son.

According to Lewis, “The Son exists because the Father exists: Mere Christianity by american and the essays, C.S. Lewis Essay. Lewis' argument in the third book is nra civil essay contest, most important to the point I want to discuss. He argues through this chapter the Christian behavior. Morality is what he considers to be the basics of book reading essay good Christian behavior.

Lewis states that morality is not simply, something that prevents you from having a good time, but rather morals are the directions for running the human machine. Every moral rule is there to prevent wear and tear on the way machine operates. Contest. He realizes that is why the rules seem to essay, The Abolition of Man by C.S. Lewis Essay. has made civilization unsustainable according to Lewis. We make men without chests and expect of them virtue and enterprise, he observed.

We castrate and bid the geldings be fruitful. Lewis concluded his first essay by launching his argument for the existence of an objective moral code that transcended time and nra civil rights essay contest, culture. In the essays second essay, The Way, Lewis claimed that an honest study of different cultures Essay on The Lion, the Witch and the Wardrobe by C.S. Lewis. standing all-round the Stone Table and though the moon was shining, many of them carried torches which burned with evil-looking red flames and black smoke” (Lewis 151). There were also ogres with huge teeth, wolves, and bull-headed men along with evil trees, and poisonous plants. Some creatures could be described in length for the sake of the readers (Lewis 151). Rights Contest. Later on, one child’s disloyalty to his siblings becomes a huge problem. Aslan decides to risk his own life for the boy. All in essay chronological all, good overthrows Subtlety and Psychology in The Screwtape Letters by C.S. Lewis.

In addition, when the patient says, for rights essay example, “All I want is a cup of tea… and the teeniest bit of really crispy toast,” the sin of greed is successfully and unnoticeably committed, because it is used to obtain exactly what one wants. Also, the ‘All I want’ way of acting can become a hassle to others as it asks of them to go out of their way in order to make something perfect. Moreover, it could jeopardize friendships because perfection can never be attained, and the dissatisfaction resulting Christian Truths in the Screwtape Lettters by C.S. Lewis Essay. “…Our cause is never more in danger than when a human, no longer desiring but still intending to do our enemies will, looks ‘round a universe from which every trace of him seems to studies houses, have vanished, and ask why he has been forsaken and still obeys” (Lewis, 39). What truths are you looking at if you have never come to know that truths of the Christian faith?

Clearly the entire story’s focal point is demonic, literally. Joanie Riche writes, “It has helped me gain an understanding of how he forces of Conflict in the Screwtape Letters by C.S. Lewis Essay. Nra Civil Rights Essay Contest. forgiveness, let [him] really be trying to feel forgiven?? (Lewis 17). His nephew is pleasure reading, also told to encourage gluttony (funny to hear about a demon encouraging?) in his patient, but in a different form from the gluttony humans typically perceive, such as having a ?Patient? be extremely demanding while trying to impede wastefulness?the demanding attitude being gluttonous while being masked by the belief that their conservation is not (Lewis 87-91). These various lessons, only some of the many pieces The Manifestation of Pride in The Great Divorce by C.S. Lewis. Adoption has brought me through the hands of my birth mother to a mother who has now raised me for 16 years. Conversations with my birth mother result in dramatic feelings for her and for me, “tyranny of the rights past” (p.102). Case Studies. But, Lewis suggests in the book that the past is all she (the ghost) “chose to have” and nra civil essay, that “it was the wrong way to deal with sorrow”. My birth mother could very well be the ghost as I was even an ‘accident’.

As her memory of me is deceiving and still consuming her thoughts Essay Meriwether Lewis the Leader. Lewis the pleasure reading Leader Meriwether Lewis is the main reason that the United States’ territory extends from the Atlantic Ocean all the way to the Pacific Ocean (“Meriwether Lewis” 2). Nra Civil Essay Contest. He has done many great things, but he is best known for exploring the American West (1). He was a great man full of bravery. Meriwether faced tons of dangers in his life but he overcame all of them. Lewis “helped change the face of the United States by exploring uncharted territory- the American West (“Meriwether Lewis” 2)

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The Fountainhead Essay Contest is open worldwide to nra civil rights, 11th and 12th graders. and bcg cover, no more than 1600 words on a topic relating to contest, Ayn Rand’s novel, The F. Here is some advice for ITGS Extended Essays, based on what has worked How can you find examples if something hasn’t happened yet? The essay is the most important part of a college appllication, see sample essays perfect for applying to tsi writing, schools in the US. Participating in nra civil rights essay such a large study from start to finish has validated my interest in academic research as a profession. And of course, the paper editing process is as much time consuming as conducting a topic research. When you are writing professionally most. When applying for admission to your selected colleges, most colleges will require you to write a personal statement to vs hamlet essay, submit along with your. Analysis of The Doctoral Research Process The doctoral research process will challenge the most learned student, inspire true seekers of truth, and culminate.

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AMCAS Work and Activities Example. In this #8220;AMCAS Work and Activities example#8221; blog post, we show examples of how to write your AMCAS work and activities descriptions. Nra Civil. Contact our Cracking Med School Admissions team at oedipus vs hamlet info@crackingmedadmissions.com and we can help you edit your AMCAS, which make your overall application much more attractive to admissions officers. Here is an nra civil rights contest AMCAS Work and Activities Example . We#8217;ll walk you through what you should also do with your AMCAS activities descriptions. Tsi Writing Essay. Common Mistakes on rights, AMCAS Work and reading essay Activities Section. One common mistake on the AMCAS work and activities section is that many medical school applicants we work with spend too much time describing the overall program. Rights Essay. In fact, some students will write an entire paragraph about the organization and will fail to mention anything about themselves.

Don’t make the vs hamlet essay, same mistake! If you look at the AMCAS activities description above, the “Program Goal” is kept brief. If you’re going to write in bullet-point fashion, make sure to nra civil rights, use strong action verbs . Thoroughly describe your involvement and highlight what you did. Vs Hamlet. If you feel like there’s an awesome experience you want to emphasize in this AMCAS work and rights contest activities example – in power and the historical and political this case, attending the essay contest, World Health Organization meetings – then don’t be shy to include these experiences in the description! Finally, in this AMCAS work and activities example the applicant highlighted a “presentation” given. This is optional, and whether you include presentations / posters / publications can be determined on bcg cover letter, a case-by-case basis. Our Cracking Med School Admissions consultants have worked with hundreds of rights contest applicants to improve their personal statements and AMCAS applications. If you want more examples and tips, we highly recommend buying our book . Additionally, feel free to email us at info@crackingmedadmissions.com or by clicking the “Ask Us” button below.

Whether you need a second opinion or help improving your first pass, our team will give you comprehensive feedback with very quick turnaround. Shadowing Experiences in AMCAS Work and Activities. Shadowing Activity Example: A common question the Cracking Med School Admissions team receives is oedipus, : how do we write about our shadowing experiences in the AMCAS work and activities section? The example below shows one approach to writing about rights, it. Here, the applicant has had several shadowing opportunities throughout college, so he decided to mention several of them.

One thing you can do with your AMCAS Work and Activities description is to describe the significance of each shadowing experience or highlight key points. The benefits to pleasure reading, having a wide range of shadowing experiences is that you can clearly convey that you’ve acquired a multifaceted perspective of healthcare. Nra Civil Rights Essay Contest. The best way to do this is to incorporate experiences unique to each specialty in your description. Looking back on the above example, the tsi writing essay, following sentences definitely stand out on their own: “ observed open heart surgeries” (You’re never gonna see this in Family medicine!) “patient consultations…dialysis centers” (Again, unique to nephrology) “attended international infectious disease conferences” (Sounds like an exciting opportunity, and nra civil rights essay makes one think of the 1995 film Outbreak , starring Dustin Hoffman) Other shadowing specialties that you can discuss: OB/GYN: Shadowed live births or fetal ultrasound sessions Radiology: Shadowed dark room sessions during an ER shift and power and the new mandarins learned to differentiate matter based on density on rights essay contest, MRI scans. Orthopedic Surgery: Shadowed rounds at clubfoot clinic Plastic surgery: Shadowed cleft palate repair surgery and follow-up outpatient care clinic. By conveying these experiences, you’re painting a bigger picture with fewer words. And The And Political. Research Experiences AMCAS Work and Activities Section. Many of you will have research experience as one of your activities.

We have stressed again, this is one of the most common fields in which applicants FAIL TO EFFECTIVELY SELL THEMSELVES. We have coached clients who’ invested three years into a research lab, but failed to effectively convey those experiences. Essay. From the pleasure reading, above experience, note how the description is limited to one, brief sentence. How much of my experience has to nra civil essay, be technical jargon? You should be able to describe key points of your research, i.e. relevant information, utilized techniques and procedures, etc. in essay your activity. Nra Civil Rights Contest. (Keep in mind that you may have to elaborate on your research during the interview). However, the bulk of your activity should include the following activities. Leadership/Ownership: Did you create a project of your own? How far did you carry it out? Honors Recognitions on AMCAS Work and Activities Section.

The purpose of research in your AMCAS work activities is to demonstrate that you put tremendous time and effort in an intellectually challenging environment. Any results from that, whether it be publications, poster presentations, etc. is a byproduct of your work, and should be mentioned briefly (It should also be mentioned in its own category). Be sure to american power new mandarins historical, mention all your awards! These include: Dean#8217;s Lists, Fellowships, Scholarships, Poster presentations, Papers published, Articles Publishes, and Newspaper features. Lessons learned for the AMCAS Work and Activities Section. Our applicant research example in the AMCAS Work and nra civil Activities section blog above emphasized two themes:

(1) learning from his mistakes (“I never wasted my failures”) (2) establishing a pristine work ethic (“scrubbed flasks, washed counters, keeping my mind busy to rub away regrets, rinse thoughts, and repeat…”). Note that he referenced the context of his research to push these two themes. (admittedly, the applicant notes that he is vs hamlet, ‘not at all a research person,’ and learned so from this experience). “Sounds great, but what if I don’t HAVE that many experiences?” With some of our other applicants, they only nra civil essay, have one or two shadowing experiences they want to write about. In these cases, we capitalize on the advantages of the power new mandarins historical essays, applicant’s depth of experience, and nra civil essay contest have the applicant write a short description of what they learned or an interesting moment that happened during their experience. Was there a particular patient story that moved you? Did your physician exhibit strength of character or moral judgment that inspired you? How was the letter, team dynamic of the hospital/clinic? You want to highlight these experiences, because they further demonstrate that you’ve made the most of nra civil contest your shadowing experiences. KEY POINT: Highlight experiences and stories that you have NOT used in your personal statement. We hope this AMCAS Work and Activities Example blog was helpful for you. We love advising and consulting for book essay medical school applications, so feel free to reach out to us! Check out our application packages here – the most popular products for pre-meds.

Feel free to email us at rights contest info@cackingmedadmissions.com or write to us in the contact form below. Ask us your questions about essays, medical school applications. Your Cracking Med School Admissions Advisers. Changing the trajectory of people’s lives. Medical School: Stanford School of Medicine. Residency: Harvard, Emergency Medicine. What I did After College: • Improved vaccine distribution in nra civil rights essay contest developing countries. • Worked with the World Health Organization in the Philippines. • Launched a national HIV Awareness Campaign in the Philippines. • Produced an HIV awareness commercial for MTV. • Worked full-time at a healthcare consulting firm, advising pharmaceutical companies. • Created a public health program in tsi writing essay Stanford’s Emergency Department. Helping students reach their full potential.

Undergraduate: Columbia University. What I did after I graduated: • Worked at two education non-profits, improving public charter schools across the U.S. • Coached students to master interview, debate, and speech techniques in the U.S. and Asia. • Advised students in China, Korea, and Japan with college applications to American Universities. • Developed mobile education content for iPhone apps. • Worked in nra civil investment banking, conducting industry analysis and advising technology companies. Advising students to attend their dream schools. Medical School: Stanford School of oedipus vs hamlet Medicine. Residency: Pediatrics, Stanford. Masters: Masters in Medical Anthropology at the School of essay contest Oriental and African Studies; Masters of Science in Public Health at vs hamlet essay the London School of Hygiene and Tropical Medicine. What I did after I graduated: • Interned with the World Health Organization in Geneva, Switzerland. • Founded and launched an NGO to nra civil rights essay, improve the health and education of chronological Ethiopian. Essay Contest. • World Bank consultant who helped implement Ethiopia’s national nutrition program. • Partnered with the Ethiopian Ministry of bcg cover Health to study child health practices in communities.

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dessay height Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to nra civil contest, protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of case your vehicle, loss if income, loss of nra civil rights contest insurance and essay, other serious consequences. Massachusetts DUI and Massachusetts OUI Violations – Here is the nra civil rights Law.

Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. According to Massachusetts DUI law, a person is bcg cover letter, considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater. If a driver is under the age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Contest. Any driver in book reading, Boston or throughout the state of Massachusetts found driving with a BAC at or above the nra civil rights contest legal limit will be arrested and houses, booked on DUI charges. At this time, it’s best to contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in rights essay contest, court. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court. There are defenses to a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Reading. Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to perform them at night, on the shoulder of the road, in the cold, in nra civil rights, the glaring squad car headlights.

We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at pleasure book reading, trial, representing professionals, college students, underage drivers and every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program. The case is dismissed after mandatory alcohol education classes and nra civil rights essay, one year of probation and, and you can get a hardship driver’s license within four days of the plea hearing. A second DUI is case studies, harsher, and often requires going to trial. Nra Civil Rights. A second offense is punished by a minimum of two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is pleasure book reading, punished with no less than 150 days of nra civil rights mandatory jail time, eight year license revocation, with no hardship license considered for two years. Massachusetts OUI/DUI Law – First Offense Penalty.

•Jail: Not more than 2 1/2 years House of Correction. •License suspended for 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. It is similar to, but not technically a guilty plea. (More info on a CWOF.) •Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance. •Unsupervised probation for case studies houses one year. •Mandatory participation in rights, 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. •License suspended for bcg cover letter 45 to 90 days (not including any penalty for breath test refusal) •License suspension is 210 days for drivers under age 21. •You are eligible for a hardship license right away, in most cases. The Real Deal on nra civil rights essay First Offense OUI Penalties:

The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law – Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. •License suspended for 2 years, work/education hardship considered in vs hamlet, 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at least 3 years total.) •As of January 1, 2006 – Interlock device installed in your car at your own expense for contest 2 years, when you become eligible for hardship or license reinstatement.

Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for by the defendant. •License suspended for two years, work/education hardship considered in narrative essay chronological, 1 year; general hardship in 18 months. •As of January 1, 2006 – Interlock device installed in your car at your own expense for essay 2 years as a condition of any license reinstatement (including hardship license). •If your prior offense is over 10 years ago, you may be eligible for and the new mandarins and political a 24D disposition, which would only be the rights essay contest penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on oedipus 2nd Offense OUI Penalties: See my second offense OUI penalties page for detail on the implications of a 2nd offense drunk driving defense.

I can almost always negotiate for the Alternative Disposition above for any second offense OUI conviction, but it is still a tough punishment to accept for many people. Given that there isn’t that much risk of nra civil rights essay a worse outcome if you choose to fight the narrative chronological order case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the prior is in another state, or decades old, you will be forced to nra civil contest, get an interlock device installed in your car as a condition of license reinstatement. The Registry is harsh on this point, and power and the new mandarins, there is nothing any lawyer can do about nra civil essay contest it. If you are facing a 2nd offense DUI, this in itself is a good reason to strongly consider fighting the case. Massachusetts OUI/DWI Law – Third Offense Penalty(3rd) Penalty. •Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in a prison treatment program. •License suspended for 8 years, work/education hardship considered in american and the new mandarins essays, 2 years; general hardship in 4 years. •Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 3rd Offense OUI Penalties:

For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. For a 3rd offense charge, this is a good reason to fight the case and nra civil rights essay, look for a chance to win and avoid jail time. It usually only makes sense to work out a deal if jail time is essay, off the table, which only happens if the court can’t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is a Felony Offense) •License suspended for 10 years, work/education hardship considered in 5 years; general hardship in nra civil contest, 8 years. •Commonwealth may seize, keep, and/or sell your vehicle.

The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Even a small chance of winning the case is worth the risk, since it is probably your only chance to avoid jail time. You need to consider fighting your case at studies, trial in almost all cases. MASSACHUSETTS OUI/DUI LAWS – FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and essay contest, mandatory jail time you are risking if found guilty will even longer. Call me for details.

OUI With Serious Bodily Injury – Penalties. If you are charged with an case studies, OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is nra civil rights contest, charged and prosecuted. Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon tsi writing essay any way or in any place to which the public has a right of access, or upon any way or in any place to essay, which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of order intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of nra civil contest chapter ninety-four C, or the oedipus vs hamlet vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment.

There shall be an assessment of nra civil essay $250 against a person who is convicted of, is placed on probation for, or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by bcg cover letter the court with the state treasurer for nra civil rights who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the chronological order assessment shall be credited to the General Fund. The assessment shall not be subject to essay contest, reduction or waiver by the court for any reason. There shall be an assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of sufficient facts for operating a motor vehicle while under the influence of pleasure book essay intoxicating liquor or under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. If a person against whom a fine is assessed is sentenced to a correctional facility and the assessment has not been paid, the court shall note the assessment on the mittimus. The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the monies, from time to time, into the Victims of nra civil rights Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to said section 66 of said chapter 10, by book reading the victim and witness assistance board for the purposes set forth in said section 66. Fees paid by an individual into nra civil essay, the Victims of Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by the court pursuant to this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of pleasure book funds imposed and collected pursuant to this section to the house and senate committees on ways and means and to the victim and witness assistance board not later than August 15 of each calendar year. If the essay defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served thirty days of case studies houses such sentence; provided, further, that the commissioner of correction may, on nra civil rights essay contest the recommendation of the warden, superintendent, or other person in charge of and the new mandarins essays a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of contest such institution for the following purposes only: to attend the funeral of bcg cover a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the nra civil rights recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by order the department of correction; and essay, provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers.

If the defendant has been previously convicted or assigned to power and the new mandarins historical essays, an alcohol or controlled substance education, treatment, or rehabilitation program by essay a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the tsi writing essay date of the nra civil rights contest commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and eighty days nor more than two and book reading essay, one-half years or by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for rights essay contest not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon studies such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for rights contest probation, parole, or furlough or receive any deduction from his sentence for vs hamlet essay good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of nra civil rights a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to letter, attend the funeral of rights essay contest a relative, to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to essay, engage in employment pursuant to a work release program; or for the purposes of an nra civil rights essay contest, aftercare program designed to support the bcg cover letter recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to nra civil essay, an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the commission of the offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for not less than two and american historical and political, one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to nra civil rights essay contest, less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for oedipus good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in nra civil contest, charge of a correctional institution, or the essay administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of contest a relative; to visit a critically ill relative; to case studies, obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an nra civil rights contest, aftercare program designed to case studies, support the recovery of an rights essay contest, offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of american power new mandarins and political correction; and provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for rights essay not less than two and case houses, one-half years nor more than five years; provided, however, that the sentence imposed upon nra civil contest such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in pleasure reading essay, charge of a correctional institution, or the administrator of a county correctional institution, grant to nra civil contest, an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an letter, aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by nra civil essay the department of correction; and provided, further, that the narrative chronological defendant may serve all or part of such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for essay contest the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the pleasure essay provisions of nra civil rights essay contest this subparagraph shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. Vs Hamlet Essay. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on rights essay such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant’s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of tsi writing a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the defendant’s arraignment. The commissioner of probation shall give priority to requests for such records. At any time before the nra civil rights contest commencement of a trial or acceptance of a plea on a complaint alleging a violation of pleasure book essay this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations. If such application is made, upon motion of the prosecutor, the nra civil rights essay contest court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint.

If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on and the new mandarins historical the new complaint be postponed until the defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to nra civil essay contest, section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint. (2) Except as provided in subparagraph (4) the provisions of section eighty-seven of pleasure book essay chapter two hundred and nra civil contest, seventy-six shall not apply to any person charged with a violation of subparagraph (1) and case studies houses, if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the provisions of section six A of nra civil rights essay chapter two hundred and seventy-nine, the court may order that a defendant convicted of oedipus vs hamlet a violation of subparagraph (1) be imprisoned only on rights essay contest designated weekends, evenings or holidays; provided, however, that the case studies provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the offense for which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the date of the commission of the offense for which he has been convicted, shall receive a report from the probation department of nra civil contest a copy of the defendant’s driving record, the bcg cover criminal record of the contest defendant, if any, and such information as may be available as to the defendant’s use of alcohol and may, upon a written finding that appropriate and adequate treatment is houses, available to nra civil essay contest, the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant’s consent place a defendant on probation for two years; provided, however, that a condition for case studies such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by essay contest said division in consultation with the department of correction and with the approval of the secretary of tsi writing health and human services or at nra civil rights essay, any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for book reading essay the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and nra civil rights, completed.

Failure of the defendant to comply with said conditions and any other terms of letter probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and nra civil rights, seventy-nine shall be commenced. Oedipus Vs Hamlet. In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to nra civil rights, imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to essay, less than two days, nor suspended, nor shall such person be eligible for furlough or receive any reduction from his sentence for good conduct until such person has served two days of such sentence; and provided, further, that the rights essay contest commissioner of correction may, on power essays the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of nra civil rights essay a relative; to visit a critically ill relative; to american power and the new mandarins and political, obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to rights, a work release program. American Power And The New Mandarins And Political. If such defendant fails to attend or complete the residential alcohol treatment program before the nra civil second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than thirty days as provided in book reading, subparagraph (1) for such a defendant. The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of essay such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the letter license or right to operate of the person so convicted unless such person has not been convicted of or assigned to rights, an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new mandarins historical new trial or exceptions shall operate to stay the revocation of the license or the right to operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar. The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in which the nra civil defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of case studies a license or right to operate by nra civil reason of a violation of paragraph (a) shall be controlled by the provisions of this section and bcg cover, sections twenty-four D and twenty-four E. (c) (1) Where the nra civil essay license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the book reading essay offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the date of conviction; provided, however, that such person may, after the expiration of three months from the date of nra civil rights contest conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of book reading a new license for employment or educational purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and nra civil essay contest, a showing by the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of narrative a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in rights, his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the license or the pleasure essay right to operate of nra civil essay contest a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the power and the and political commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for rights which such person has been convicted, the registrar shall not restore the license or reinstate the bcg cover letter right to rights essay, operate of such person unless the prosecution of such person has been terminated in studies, favor of the rights essay defendant, until two years after the essay date of the conviction; provided, however, that such person may, after the expiration of 1 year from the date of conviction, apply for and shall be granted a hearing before the registrar for rights the purpose of tsi writing requesting the issuance of nra civil essay contest a new license for employment or education purposes, which license shall be effective for chronological order not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the rights essay contest causes of the studies houses present and past violations have been dealt with or brought under control and that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and nra civil contest, the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of oedipus vs hamlet 18 months from the date of conviction, apply for nra civil contest and shall be granted a hearing before the registrar for the purpose of requesting the pleasure book issuance of a new license on essay a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in tsi writing essay, his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license.

(3) Where the license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to nra civil, an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of case houses two years from the date of the conviction, apply for and shall be granted a hearing before the nra civil rights contest registrar for the purpose of requesting the issuance of a new license for reading essay employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on the grounds of nra civil contest hardship and a showing by the person that the causes of the power new mandarins and political essays present and nra civil rights essay contest, past violations have been dealt with or brought under control and the registrar may, in houses, his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of four years from the nra civil essay contest date of conviction, apply for and shall be granted a hearing before the oedipus essay registrar for the purpose of requesting the nra civil rights contest issuance of a new license on a limited basis on the grounds of oedipus vs hamlet hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and nra civil rights contest, necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an bcg cover, ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the nra civil essay contest hardship license. (31/2) Where the license or the right to and the new mandarins, operate of a person has been revoked under paragraph (b) and essay contest, such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the date of the and the and political conviction; provided, however, that such person may, after the expiration of five years from the date of the nra civil rights conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for tsi writing employment or education purposes which license shall be effective for an identical twelve hour period every day on nra civil rights contest the grounds of hardship and a showing by the person that the narrative essay chronological order causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and nra civil, provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of letter hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under the terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by nra civil rights essay contest the licensee for case studies the duration of the rights hardship license. (33/4) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the commission of the order offense for which such person has been convicted, such person’s license or right to operate a motor vehicle shall be revoked for the life of such person, and such person shall not be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on contest a limited basis on american power new mandarins historical and political essays the grounds of hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the nra civil rights essay contest prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in power new mandarins historical and political essays, accordance with the provisions of chapter thirty A, from any order of the registrar of motor vehicles under the provisions of this section. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant’s biographical and informational data from rights records of the department of bcg cover probation, any jail or house of corrections, the essay department of correction, or the registry, shall be prima facie evidence that the studies houses defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and rights essay contest, admissible, after the commonwealth has established the defendant’s guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendant’s commission of any prior convictions described therein.

The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the book purposes of subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of a prosecution upon appeal or otherwise after such a conviction. Where there has been more than one conviction in the same prosecution, the date of the nra civil rights first conviction shall be deemed to be the date of conviction under paragraph (c) hereof. (e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis of tsi writing essay his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to rights essay contest, the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by essay or at rights essay, the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. Narrative Essay Chronological. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is under the rights age of twenty-one and such evidence is new mandarins historical, that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater, the nra civil rights contest officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant’s license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an narrative, analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the essay percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the case studies houses public has right to access, or upon any way or in rights, any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for pleasure reading treatment to a medical facility licensed under the provisions of section 51 of essay contest chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the case studies use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in essay contest, section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the essay person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to essay, operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for case studies houses such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of essay contest blood alcohol of eight one-hundredths or greater, or while under the houses influence of intoxicating liquor in violation of subsection (b) of said section 24G, section 24L or subsection (a) of essay contest section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of narrative chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of nra civil essay contest 2 such violations shall have his license or right to operate suspended forthwith for a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of a violation of tsi writing essay section 24L, the restistrar shall suspend his license or right to nra civil essay contest, operate for tsi writing essay 10 years.

If a person refuses to submit to rights essay, any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of such person’s license or right to operate issued by essay the commonwealth; (ii) provide to each person who refuses such test, on behalf of the registrar, a written notification of suspension in essay contest, a format approved by the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operator’s refusal, with the costs for the towing, storage and maintenance of the vehicle to be borne by the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of vs hamlet such refusal. Each report shall be made in a format approved by the registrar and nra civil rights, shall be made under the american penalties of perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for nra civil the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to submit to a chemical test or analysis when requested by the officer to new mandarins historical and political, do so, such refusal having been witnessed by another person other than the defendant. Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of nra civil rights intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate which has been confiscated pursuant to bcg cover, this subparagraph shall be forwarded to the registrar forthwith.

The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the rights contest suspension specified in this section. The suspension of a license or right to operate shall become effective immediately upon receipt of the notification of suspension from the police officer. A suspension for a refusal of either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to pleasure essay, any additional suspension periods arising from the nra civil contest same incident, and as to oedipus essay, each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon nra civil rights the entry of a not guilty finding or dismissal of pleasure reading essay all charges under this section, section 24G, section 24L, or section 131/2 of nra civil essay chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on case studies houses the charges for the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a person’s blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on behalf of the registrar take custody of such person’s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the rights registrar, a written notification of suspension, in vs hamlet essay, a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to rights contest, the registrar. Each report shall be made in a format approved by the registrar and shall be made under the letter penalties of perjury by the police officer.

Each report shall set forth the grounds for the officer’s belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of essay intoxicating liquor and that the letter person’s blood alcohol percentage was not less than .08 or that the person was under 21 years of age at the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the nra civil essay contest operator administering the test or analysis was trained and certified in the administration of the test or analysis, that the test was performed in accordance with the regulations and standards promulgated by book the secretary of public safety, that the equipment used for the test was regularly serviced and maintained and contest, that the person administering the test had every reason to believe the equipment was functioning properly at case studies, the time the nra civil essay test was administered. Each report shall be sent forthwith to oedipus essay, the registrar along with a copy of the rights essay contest notice of intent to suspend, in case houses, a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to contest, suspend from pleasure reading a police officer. Essay Contest. The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater and upon vs hamlet the failure of any police officer pursuant to this subparagraph, to rights, suspend or take custody of the driver’s license or permit issued by oedipus essay the commonwealth, and, in contest, the absence of a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant’s license or right to operate a motor vehicle upon receipt of a report from the police officer who administered such chemical test or analysis of the defendant’s blood pursuant to case studies, subparagraph (1). Rights Essay. Each such report shall be made on narrative essay order a form approved by the registrar and shall be sworn to essay contest, under the oedipus essay penalties of perjury by such police officer. Each such report shall set forth the grounds for contest the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the essay influence of intoxicating liquor and that such person was under twenty-one years of essay contest age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by the secretary of and political essays public safety, that the equipment used for such test was regularly serviced and maintained, and rights essay contest, that the person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and shall be sent to the registrar along with the confiscated license or permit not later than ten days from the american and the new mandarins date that such chemical test or analysis of the defendant’s blood was administered.

The license to nra civil rights essay, operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to chronological order, operate has been suspended under subparagraph (1) of rights paragraph (f) shall, within fifteen days of narrative essay chronological order suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the rights essay police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in any place to which members of the public have a right of pleasure book access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the essay registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by case studies houses the determination shall have the right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. The filing of nra civil a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof.

Review by the court shall be on the record established at the hearing before the registrar. Tsi Writing Essay. If the nra civil rights contest court finds that the department exceeded its constitutional or statutory authority, made an pleasure book reading essay, erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is essay contest, unsupported by the evidence in the record, the court may reverse the registrar’s determination. [ Second paragraph of letter paragraph (g) of subdivision (1) effective until November 4, 2010. For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of rights essay contest such suspension request a hearing and upon such request shall be entitled to a hearing before the court in essay chronological, which the underlying charges are pending or if the individual is essay contest, under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the bcg cover letter age of twenty-one was less than two one-hundredths. If the nra civil contest court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the bcg cover age of nra civil essay twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the pleasure book essay criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by 2010, 256, Sec. Essay Contest. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to oedipus vs hamlet essay, subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of rights essay such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to tsi writing, the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to nra civil rights essay contest, such person under the age of twenty-one was less than two one-hundredths.

If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of pleasure twenty-one, that such percentage was less than two one-hundredths, the nra civil rights court shall restore such person’s license, permit or right to operate and power new mandarins historical essays, shall direct the prosecuting officer to forthwith notify the department of rights essay contest criminal justice information services and the registrar of such restoration. (h) Any person convicted of a violation of narrative subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of nra civil essay glue, may, as part of the tsi writing disposition in the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of subdivision (2) effective until September 30, 2010. For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in any place to which the public has a right of nra civil rights essay contest access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the oedipus vs hamlet public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for nra civil essay the purpose of making a record and case studies houses, thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and nra civil rights essay contest, making known his name, residence and the register number of and the new mandarins historical his motor vehicle goes away after knowingly colliding with or otherwise causing injury to rights, any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of reading essay a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for nra civil rights essay not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in oedipus essay, the state prison for not more than five years or in a house of nra civil rights essay contest correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and pleasure book reading, imprisonment; and whoever is found guilty of rights essay a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by bcg cover a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and essay contest, one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. Pleasure Reading Essay. A summons may be issued instead of a warrant for arrest upon a complaint for nra civil essay a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is bcg cover letter, reason to believe that the defendant will appear upon nra civil a summons.

[ First paragraph of paragraph (a) of subdivision (2) as amended by and political 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to which the public has a right of access, or any place to which members of the nra civil rights essay contest public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the bcg cover public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and nra civil contest, thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in houses, an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and nra civil essay contest, whoever uses a motor vehicle without authority knowing that such use is essay, unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for nra civil contest not less than thirty days nor more than two years, or both, and for power and the essays a second offense by imprisonment in the state prison for not more than five years or in a house of nra civil contest correction for not less than thirty days nor more than two and one half years, or by a fine of vs hamlet not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of contest his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and power new mandarins historical, one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for rights arrest upon a complaint for a violation of any provision of this paragraph if in the judgment of the bcg cover letter court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons. There shall be an assessment of $250 against a person who, by a court of the commonwealth, is convicted of, is placed on nra civil rights probation for or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to narrative chronological order, the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason.

(a1/2) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right of contest access, or upon american power historical and political any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished by nra civil rights imprisonment for essay not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public shall have access as invitees or licensees and without stopping and nra civil, making known his name, residence and the registration number of book his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of a person, be punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in nra civil, charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for essay the following purposes only: to attend the funeral of a relative; to nra civil rights contest, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at american power new mandarins historical, said institution or to engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the nra civil license or right to operate of the essay person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to operate. If it appears by the records of the nra civil rights essay contest registrar that the person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the essay registrar may revoke the nra civil rights contest certificate of case studies houses registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the defendant. In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the nra civil right to operate to a person convicted in any court for case a violation of any provision of essay contest paragraph (a) or (a1/2) of american power historical essays subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of nra civil essay contest a violation of subparagraph (1) of paragraph (a1/2) until one year after the date of revocation following his conviction if for a first offense, or until two years after the date of revocation following any subsequent conviction; (ii) any person convicted of a violation of essay subparagraph (2) of paragraph (a1/2) until three years after the date of revocation following his conviction if for a first offense or until ten years after the date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and nra civil contest, (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of three years.

Notwithstanding the forgoing, a person holding a junior operator’s license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for a first offense or 1 year after the date of revocation following a subsequent conviction within a period of pleasure 3 years. The registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of nra civil contest a conviction of operating a motor vehicle upon any way or in any place to which the public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the case studies houses lives or safety of the nra civil public might be endangered. The provisions of oedipus vs hamlet this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of any provision of nra civil rights contest this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of except by trial, judgment and sentence according to the regular course of criminal proceedings; and oedipus vs hamlet, such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and nra civil contest, that the interests of justice require the allowance of the motion, the motion shall be allowed and the certificate shall be filed in order, the case. A copy of the motion and rights essay, certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to case studies, this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the rights contest biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of essays a like offense by a court of the commonwealth one or more times preceding the date of commission of the offense for which said defendant is being prosecuted.

A Massachusetts DUI OUI jury returned verdicts of guilty on nra civil rights essay contest charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR RELIEF UNDER MASS. R. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger.

Before me is the defendant’s motion, under Mass. R. Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to narrative chronological order, the lesser included offense of misdemeanor vehicular homicide on ground of operating to endanger. For the reasons that follow, the defendant’s motion is DENIED. At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite direction. The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to essay contest, endanger, and felony motor vehicle homicide.1. It was the Commonwealth’s theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and essay, that her truck veered out of rights her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of each of the charges against her.

The verdict of felony motor vehicle homicide (G.L. c. 90, §24G) required findings by the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and that she was under the essay influence of an intoxicating substance (on the Commonwealth’s theory, a scheduled narcotic or depressant). Essay Contest. See Note 1, supra. The evidence as to each of these findings is narrative essay chronological, therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to essay contest, negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the pleasure reading essay Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant.

No lengthy review of either expert’s testimony is necessary here, except to nra civil essay, say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant’s lane of travel, and that the truck therefore must have left the roadway and traveled on essay the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the location of the impact. The Commonwealth’s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury’s verdict on this point was adequately supported by the evidence. B. Operating Under the Influence. The “operating under” element of the OUI (G.L. c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle “while under the influence of contest intoxicating liquor, or of chronological order marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. Nra Civil Contest. c. 94C, §1], or the vapors of case studies houses glue.” As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the “scheduled medications”).

The first two are depressants; the last, a narcotic.3. There was no direct evidence as to when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to nra civil rights, whether any were in her system, or in what quantity. Case Houses. The circumstantial evidence as to the “operating under” element was as follows. 1. CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the nra civil defendant had filled prescriptions for tsi writing the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP.

Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity. Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the nra civil rights OUI and vehicular homicide statutes.

Even if the defendant were impaired by one or more of pleasure book essay these medications, therefore, she would not have been “operating under the influence” within the meaning of essay contest these statutes, unless she was also impaired by oedipus vs hamlet essay one or more of the scheduled medications. 2. Essay. Testimony of Dr. Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on August 29 was written by oedipus essay Dr. Andrew Abela. Dr. Abela, a dentist, testified that on rights contest August 24, 2001, while the defendant was a psychiatric inpatient at book reading, Emerson Hospital, she made an emergency visit to his office for tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at that time.

His practice is to recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness. He further testified that patients who have had a tooth extracted sometimes experience “dry socket” three to five days after the nra civil rights contest procedure, which can cause pain to flare up at that time. Extraction of a lower tooth, and smoking following the procedure (the defendant is a smoker), both place the patient at increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the “monographs” that CVS, when filling a prescription, produces and staples to the bag containing the pill bottle. The monograph sets forth patient information in bcg cover letter, paragraphs headed “USES,” HOW TO USE,” SIDE EFFECTS,” PRECAUTIONS,” DRUG INTERACTIONS,” OVERDOSE,” NOTES,” MISSED DOSE,” and rights contest, “STORAGE.” Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). Bcg Cover Letter. The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam)

SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. … SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the nra civil rights essay eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: … Use caution when performing tasks requiring alertness. … SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of book reading essay coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. Rights. ….

PRECAUTIONS: … Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia. In recorded statements she gave to oedipus, the police on September 2 and 6, 2001 (both of which were played for the jury), the defendant stated that she had undergone a miscarriage on nra civil rights essay May 19 of that year; suffered from post-traumatic stress disorder; and and the new mandarins, had twice attempted suicide (most recently on August 21, which had resulted in nra civil rights, her admission to Emerson Hospital’s psychiatric unit from vs hamlet then until the 29th). She also stated that she had been having trouble sleeping, and that the night before the essay contest accident, she had gone to bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth’s medical expert (Dr.

Brower) testified concerning the indications, action, and side effects of the medications the defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is oedipus, a narcotic analgesic, derived from the opium plant and used for moderate to severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. • Diazepam (Valium) is an nra civil essay, a benzodiazepine prescribed for anxiety and sometimes for studies houses insomnia. It metabolizes, and nra civil essay contest, affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and bcg cover letter, accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of nra civil essay cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in therapeutic doses, include impairment and slowing down of mental and motor functions, and drowsiness.

A single dose can affect the patient for up to 24 hours. Case Studies. Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. • Effexor is an antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and insomnia or somnolence, but not impairment of psychomotor skills. • Zyprexa is nra civil rights essay contest, used to treat severe insomnia. Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of acute symptoms.

Both therapeutic and american and the, side effects may decrease with prolonged, regular use, but this is less likely with prolonged “PRN” (as needed) use. Rights Essay. The other three medications take longer — 2 to 4 weeks — to be effective, and their side effects normally abate over time. Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealth’s view of how the accident happened (i.e., that the truck left the houses roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to an emergency erratically or at the last minute, are consistent with the nra civil rights contest effects of the three scheduled drugs. Bcg Cover Letter. There could be other causes as well (and patients vary in the severity of their reactions to these and nra civil essay, other drugs), but any or all of the scheduled drugs are capable of producing these effects. Bcg Cover Letter. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the scheduled drugs. 5. Defendant’s Statements Concerning Medications.

The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on the scene just after the accident and helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him “quite a few bottles”; and that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the EMT to whom Alcantara referred, testified (with the nra civil rights essay contest aid of oedipus his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa. 3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendant’s “current medications,” percocet and valium “PRN” (i.e., as needed). This was in response to the question he asks every patient,” What medications are you currently taking?” 4. Nra Civil Rights Contest. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the case accident. Nra Civil Rights. She stated that she had not driven, or been out of the house, for two weeks prior to pleasure reading, the accident (excepting her stay on a locked floor at Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed — Effexor twice a day, Zyprexa once a day, and Topomax (“I take two”) — and nra civil, that “If I went without them, I’d be a fruit loop.”5 She took her Effexor shortly before leaving the house the day of the case studies houses accident.

She said that the packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. 6. Essay Contest. Descriptions of the Defendant’s Affect. Five witnesses testified as to the defendant’s affect, as it bore on the question of possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not “grossly” affected by drugs or alcohol. 2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the oedipus vs hamlet essay accident, and went to see if the rights contest defendant needed help. She assessed her for head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to follow the oedipus directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented “times 3? (i.e., oriented to person, place and time).

His bedside neurological exam showed no focal deficits and no signs of intoxication; “There was nothing about her that made me think she was under the influence.” He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the presence of nra civil essay contest these substances in a blood or urine sample would have been uninformative).6. 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the letter first responders, testified that he saw the defendant at the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of something. He smelled no alcohol and there was” nothing I could put my finger on,” but he did notice that she was unusually subdued, not “bubbly” as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into essay, the other lane (leftwards) to avoid the bicyclist. American Power And The Historical. He went to rights essay contest, the hospital where she was taken, where she said she had swerved to the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendant’s erratic driving the day of the accident. As mentioned above, there was evidence from narrative chronological which the rights essay jury could have concluded that the accident occurred when defendant’s vehicle left her lane of studies houses travel and swerved onto nra civil rights essay contest, the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to avoid the bicyclist.

There was also testimony from two witnesses who, the jury could have found, encountered the essay plaintiff minutes before the accident, between a mile and two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend’s house on the way). Contest. George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at a high rate of speed in the opposite (northbound) lane. As they and narrative order, the truck approached one another at a curve in the road, the truck swerved into their lane and beyond, into the dirt by the (wrong) side of the road. Nra Civil Rights Essay. It did not slow down, and was in essay order, their lane for several seconds before veering back into rights essay, the correct lane of essay travel. Essay Contest. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to the police, the defendant stated that the only significant event on essay chronological order her drive from Ayer to Groton was that her sandal “fell off once” in the general area of the rights contest incident described by Krusen and Curcio; that she might have swerved slightly; but “then that was fine.” Both men generally described the truck and driver,8 and essay, both, at nra civil contest, the request of the Groton police, viewed the truck after the accident at tsi writing, the garage where it had been towed. Krusen (the driver) told the police he did not think the truck in the garage was the one he had seen on Groton School Road. Curcio, on the hand, testified that he was positive that it was the same truck.

The time, place, and descriptions of the nra civil rights encounter were such that the jury would have been warranted in concluding that the driver was the defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the tsi writing accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for a directed finding at the close of the Commonwealth’s case. At that point, as required, I reviewed “whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the nra civil essay case to the … jury, to decide the innocence or guilt of the accused.” Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). I determined that although the letter evidence that the defendant was under the influence of nra civil essay any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to the jury. The defendant has now renewed her motion, requiring me (a) to tsi writing essay, look again at whether the Commonwealth’s case was sufficient, and (b) “to determine whether the Commonwealth’s position as to proof had deteriorated since it had closed its case.” Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the evidence in nra civil rights essay, the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Tsi Writing Essay. Torres, 24 Mass. Contest. App.

Ct. 317, 323-24 (1987). “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Tsi Writing Essay. … [The] question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the contest crime beyond a reasonable doubt.” Thus, to pleasure essay, sustain the denial of a directed verdict, it is not enough … to find that there was some record evidence, however slight, to nra civil rights essay contest, support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and Commonwealth v. Doucette, 408 Mass. 454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge’s review of motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino’s testimony placed the defendant’s truck on the sidewalk, out of her lane of travel and in the path of an oncoming cyclist, with no apparent explanation to be found in studies houses, road, traffic, weather, or lighting conditions. Nra Civil Essay. This was sufficient to convict for operating to endanger.

See, e.g., Commonwealth v. Siciliano, 420 Mass. Essay. 303, 307-08 (1995) (“evidence that the essay defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island” was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is letter, a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to the operation of the nra civil rights truck before the accident was not required. See, e.g., Commonwealth v. Houses. Gordon, 389 Mass. 351, 358 (1983).

The evidence concerning operating under the influence presented a closer case, but still one presentable to the jury. To succeed on this element, the Commonwealth was required to prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on the defendant’s “judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies,” diminished her “ability to operate a motor vehicle safely.”10 Commonwealth v. Connolly, 394 Mass. Nra Civil Contest. 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the defendant’s diminished ability to drive safely, so long as is was a contributor. “It is enough if the defendant’s capacity to operate a motor vehicle is diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to power and the and political, that diminished capacity.” Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988). From the evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and rights essay, thus had access to the three controlled medications; 2. That her pattern of tsi writing essay filling the prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for nra civil contest oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to american power new mandarins historical and political essays, have affected her on rights contest September 1;

4. That lorazepam, even if consumed the night before, would still have affected her the narrative essay day of the contest accident; 5. That the steadily diminishing list of medications given by pleasure essay the plaintiff following the accident — and the omission of the three controlled medications in her statements to the police — indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the rights essay evidence of the defendant’s erratic and dangerous driving, on two occasions11 separate but close in time and location, and the lack of any reasonable explanation for either, was evidence of impairment due to tsi writing, intoxication; 7. Nra Civil. That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant’s affect after the accident to detect impairment; 8. Narrative Essay Chronological. That the description of the contest defendant’s affect by Officer Hatch, who had known her for most of narrative order her life, was consistent with the sedating effects of all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App. Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass.

App. Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to be impaired by them, and it lacked direct evidence of nra civil essay what concentrations she had of any of them. Even the bcg cover letter direct evidence of signs of nra civil intoxication in letter, the defendant’s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to conclude that the essay contest defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and (by the power and the time she spoke to the police) legally as well; and that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs.

This was enough to convict. The question of guilt cannot be left to nra civil rights, conjecture or surmise. … However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt. An inference drawn from circumstantial evidence “need only vs hamlet be reasonable and essay contest, possible; it need not be necessary or inescapable.” Moreover, the evidence and the permissible inferences therefrom need only be sufficient to persuade “minds of ordinary intelligence and sagacity” of the defendant’s guilt. And Political Essays. Fact finders are not “required to divorce themselves of nra civil rights essay contest common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of power new mandarins historical and political essays their experience as to the natural inclinations of human beings.” To the extent that conflicting inferences are possible from the essay evidence, it is for the fact finder to pleasure, resolve the contest conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict.

Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows: Motion After Discharge of Jury. Case Studies Houses. If the motion [for a required finding of not guilty] is denied and rights, the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the narrative essay chronological order judge may on motion set aside the verdict and nra civil rights essay contest, order a new trial, or order the entry of case studies houses a finding of not guilty, or order the rights essay entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. c. 278, §11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to case, review so-called capital cases — convictions of murder in nra civil contest, the first degree — under G.L. c. 278, § 33E. The postconviction powers granted by oedipus vs hamlet essay the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to ensure that the result in every criminal case is consonant with justice. It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the jury’s verdict. “[A] new trial or verdict reduction may be proper even when the nra civil rights evidence can legally support the jury’s verdict.” The judge’s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial. The judge’s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to power historical and political, ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge’s own error, or … the interaction of several causes. Commonwealth v. Nra Civil Essay. Woodward, 427 Mass.

659, 666-67 (1998). As the essay order trial judge in Woodward put it, a judge’s exercise of the Rule’s authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal. Nra Civil Essay Contest. The judge, formerly only an bcg cover letter, umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the nra civil essay level of guilt …. The facts, as well as the bcg cover letter law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that “[b]ecause such broad postconviction authority is vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.” Id. at 667, citing Commonwealth v. Keough, 385 Mass. 314, 321 (1982) (trial judge “should not sit as a `second jury’”); see also Commonwealth v. Carter, 423 Mass. Essay. 506, 512 (1996) (judge hearing motion to vs hamlet, reduce verdict “is not to nra civil rights essay, play the role of thirteenth juror” or to “second guess the jury”). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to walk the “fine line[s]” between the forms of malice required for bcg cover letter the various degrees of homicide.12 427 Mass. at 669.

The defendant offers two reasons for a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to rights essay contest, operating to endanger): 1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the historical and political accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in rights, part, as an tsi writing, argument for “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the defendant characterizes it, “slim,” at least in rights essay contest, the sense that there was no single piece of evidence of oedipus vs hamlet which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to rights essay contest, discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from tsi writing essay physics and accident reconstruction. If one accepts the conclusion of Trooper Alvino that the essay truck was on the sidewalk at the point of impact — which the jury were not required but were entitled to do — there might be a variety of explanations for it, but the only one to be found anywhere in essay, the evidence is that of rights essay intoxication.

If one also accepts the essay testimony of Krusen and Curcio (including the identification furnished by the latter) — as the essay contest jury were also entitled to do — this showed a chain of events of houses some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. A loose sandal might explain the rights essay Krusen-Curcio incident alone — though even this is undercut by the defendant’s disclaimer of any problem resulting from it — but it does little to explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of several minutes and letter, several miles. Essay Contest. When combined with evidence of the bcg cover letter defendant’s access to, her apparent pattern of using, and rights essay, the likely effects of the essay controlled medications, and with Officer Hatch’s description of her affect after the accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is most often exercised in order to navigate the murky — and nra civil essay, notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and fairness, requires a jury’s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in these. In this case, however, the central issue — whether or not the defendant’s ability to perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. Its determination on the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in its quantity and its overall quality. Trial presentations for both sides were excellent.

I do not think the jury’s verdict represented a miscarriage of justice. The defendant’s final argument — that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. c. 90, §§24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendant’s mental illness, or her therapy. The offense is operating under the influence. What is forbidden is not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by these or by pleasure other, enumerated substances.

The OUI and vehicular homicide statutes on their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the death of another person (for vehicular homicide). Impairment by a prescription drug may be as dangerous as impairment by alcohol or a drug of abuse (which for some drugs is precisely the reason a prescription is required). Essay. The statute aims to power and the historical and political essays, keep the impaired driver off the road in either case. While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed — and will be addressed in this case — in sentencing. For the foregoing reasons, the nra civil rights essay contest defendant’s Motion for Relief Pursuant to Mass. R. Crim. P. 25(b)(2) is DENIED. The date for tsi writing sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. Nra Civil Essay. A conviction for felony vehicular homicide requires findings both that the defendant was operating under the oedipus vs hamlet influence, and nra civil essay, that she was operating to endanger(and that her operation caused the death of narrative another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in death.

Both operating under and operating to endanger are therefore lesser included offenses in nra civil contest, relation to felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over two mornings, concerning the bcg cover letter admissibility under Commonwealth v. Lanigan, 419 Mass. 54 (1994), of nra civil essay Trooper Alvino’s testimony. It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino’s testimony. 3. Tsi Writing. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth’s request, that these are “depressants,” because they appear on the attorney general’s list of controlled substances, incorporated by reference into c. Rights Contest. 94C, §1 and thereby into c. 90, §§24(a) and 24G(a). Pleasure Essay. Oxycodone’s status as a narcotic was established by the testimony of the Commonwealth’s medical expert, Dr. Rights Essay Contest. Brower. 4. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to feel “out of it” and to sleep a lot, but that “now they have no effect on me, and I’m fine.” In testimony that I excluded (after first asking if the defendant wished to waive the privilege which she had successfully asserted to and political essays, exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that “the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday … and he said it was fine.

He said they have no effect on your driving.” 6. Dr. Balser and the police witnesses were in agreement that the decision whether or not to test for intoxication is a medical one, made by nra civil essay contest the physician and not under the direction of letter law enforcement. 7. This description of the defendant’s affect could be interpreted as at least generally consistent with the description, given by rights essay Dr. Brower, of the calming and sedating effects of lorazepam and diazepam.

The jury might also have concluded, reasonably, that the effects of american power and the historical these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol. 8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to describe beyond a “very dark green with something mixed in”; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking “intense.” 9. The jury were instructed that the contest charges against the defendant all pertained to and the new mandarins and political, the accident with Evan Holofcener, not to the incident involving Krusen and nra civil essay, Curcio. 10. At the defendant’s request, and over the Commonwealth’s energetically pressed objection, I gave the jury a “specific unanimity” instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant’s ability to drive. “[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.” Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Here, there was evidence of ingestion of multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle.

Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcio’s identification of the truck, and attributed Krusen’s failure to identify it to the fact that he had been the driver, and therefore, preoccupied. 12. The SJC noted in Woodward, “Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.” 427 Mass. at 667. Pleasure Reading Essay. Eight of nra civil these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass. App.

Ct. 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for the defendant. Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth.

Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ. The defendant appeals from the revocation of his probation, based on essay evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to sufficient facts to warrant a finding of guilty on a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and placed the essay contest defendant under the supervision of case houses a probation officer on terms that, among others, required that he “obey all court orders and local, [S]tate and [F]ederal laws” until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from a football game.

The stop resulted in new charges being lodged against the defendant in Falmouth District Court for operating a motor vehicle while under the influence of alcohol and essay contest, operating a motor vehicle under a suspended license. The new offense triggered the issuance of a written notice of pleasure essay a probation violation from the Brighton District Court, stating the nra civil rights defendant was not in bcg cover letter, compliance with the terms of essay contest his probation because of the new complaint. After a hearing on March 3, 2000, the judge found that the defendant had violated the terms of pleasure his probation on the basis of his admission to the Mashpee police during his arrest that he had driven his car earlier in rights essay, the day. The judge entered a guilty finding,1 and modified the terms of probation by extending the probationary period to one year from the date of the hearing and imposing a suspended, ten-day house of oedipus vs hamlet essay correction sentence.2. On appeal, the defendant argues that the entry of a guilty finding and nra civil contest, the order modifying the terms of his probation should be reversed because (1) the grounds stated as the tsi writing essay reason for revoking his probation were different from those for which he had received written notification; (2) the defendant’s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and nra civil rights, (4) his admission was not the product of voluntary actions, because at narrative essay, the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings. We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130.

He was forced to steer his police cruiser to the right in essay contest, order to avoid being hit by a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to see who was driving or how many people were in the vehicle. He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Read found it parked at the side of the oedipus essay road. Essay Contest. Read observed the defendant standing toward the back of the vehicle, on the driver’s side. Read stopped, exited, and walked toward the defendant.

As Read approached, the defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to look through the glove box. Read asked the defendant where the driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant’s son-in-law, emerged from the woods by the side of the american new mandarins road, where he apparently had been urinating. Read asked both the defendant and Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in nra civil rights, it in the rear of the vehicle. Oedipus Vs Hamlet. Read determined that the defendant was the owner of the vehicle.

Read determined that both the defendant and Crosby were under the rights contest influence of alcohol, and placed both in protective custody. Officer Paul Coronella was called and letter, arrived at nra civil contest, the scene. The defendant was placed in pleasure book reading essay, the rear of Coronella’s police car and Crosby was placed in nra civil essay, the rear of Read’s police car, both for transportation to the police station. Studies. En route to rights contest, the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the letter driver. Read obtained a signed, written statement from Crosby that the defendant was the driver.

After conducting sobriety tests, which he said the defendant failed, Coronella placed the defendant under arrest for operating the motor vehicle on Route 130 while under the nra civil essay contest influence of studies intoxicating liquor. A breathalyzer test revealed the defendant to have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to inventory the rights contest contents of the defendant’s vehicle at reading, the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby “exhibited extreme symptoms of essay contest intoxication.” Coronella’s report of the booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella’s and Read’s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella’s and Read’s reports explain that the defendant answered that he drove from his house in Brockton to his son-in-law’s, Crosby’s, home in East Bridgewater. Case Studies Houses. Crosby then drove the nra civil rights essay contest defendant’s vehicle to the game. When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby’s house, but acknowledged that it was “possible” the defendant had made such a comment.

The judge did not credit Crosby’s statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Pleasure Book Essay. Rather, the judge credited the defendant’s admission, as reported by Coronella and nra civil, Read, that he had driven from his house to Crosby’s house, the first leg of the trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and letter, we affirm. Written Notification. The defendant first argues that the written notice of surrender referenced only the two charges for which he was arrested by rights essay contest the Mashpee police, and contained no reference to bcg cover letter, the uncharged misconduct that occurred earlier in the day, when he drove from his home to Crosby’s home under a suspended license. The issue was first raised in the defendant’s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the nra civil essay contest written notice was limited on letter its face to nra civil essay, the two charges filed in connection with the incident that occurred on Route 130, and that the tsi writing notice of violation of probation did not include mention of his operating the motor vehicle on a public way earlier in the day.5 The Commonwealth appears to concede that, because of rights lack of bcg cover letter notice, the earlier operation cannot form the basis of the instant revocation. We disagree.6.

While there can be no doubt that written notice of the nra civil rights claimed violations are included among the “minimum requirements of due process,” Commonwealth v. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an pleasure reading, inflexible concept. Ibid. Flexibility is important both to insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to insure the Commonwealth the ability to rights essay, deal expeditiously with a violation of that opportunity. See id. at pleasure, 113-116, 551 N.E.2d 1193. Essay. See also Commonwealth v. Sheridan, 51 Mass.App.Ct.

74, 76-77, 743 N.E.2d 856 (2001). A probation revocation is book, not a criminal prosecution. Nra Civil Rights Contest. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. In this case, the written notice did not specifically state the tsi writing basis upon contest which the judge based the revocation. The defendant’s admission, however, of having driven the vehicle earlier in the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. In any event, assuming that the failure to specifically enumerate the bcg cover misconduct on the face of the notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the actions of rights essay defense counsel in introducing the issue at the inception of the bcg cover letter hearing, and in vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the defendant’s principal concern was with the then-pending operating under the rights essay contest influence charge. With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to tsi writing essay, accept a recommended disposition on the probation violation.

After discussion about a possible disposition, counsel told the judge the following: “There is a second matter of operating after a suspended license. And there are two incidents of nra civil rights essay contest operation, one of which I understand my client is accused of admitting that he did. I’m not saying that is his position, but in the police report it indicates something to book essay, that effect. “If we could just go forward with regard to that issue and rights essay contest, not stipulate to the OUI, it would still be a technical violation.” (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the officer with regard to the defendant’s statement that he had driven the pleasure essay car earlier in the day, and went so far as to elicit a statement from the essay officer that the defendant might also have told him that a family member, rather than the defendant, drove the car to Crosby’s house. Counsel was amply prepared at the start of the hearing to consider the issue of the defendant’s admitting to the first occasion of driving after suspension of his license. On the american new mandarins and political essays facts of this case, the defendant is unable to demonstrate prejudice resulting from any lack of notice, and this failure to nra civil essay contest, show prejudice is houses, fatal to his claim of error. See Delisle v. Commonwealth, 416 Mass. Rights Essay Contest. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986).

Compare Commonwealth v. Letter. Streeter, 50 Mass.App.Ct. 128, 131-132, 735 N.E.2d 403 (2000). Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the nra civil rights contest warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the vs hamlet statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to form the basis of the rights essay probation surrender, since it lacked corroborative evidence and was contradicted by information contained in and the essays, the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant’s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the basis of the violation.

The record shows that the conversation reported by Coronella, in which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read’s testimony at the hearing supports this version of events.8. Moreover, even were we to agree that the rights defendant’s admission was obtained prior to his being given his Miranda rights, the statements were admissible. Following the rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of tsi writing essay evidence obtained in violation of the Fourth Amendment, the nra civil contest Supreme Judicial Court, in Commonwealth v. American Power New Mandarins Historical. Vincente, 405 Mass. Essay Contest. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the defendant’s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for essay a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the defendant and Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the influence, the exclusion at a probation revocation hearing of the defendant’s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass.

491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness. Simon next argues that the essay statement he made at essay, the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of nra civil contest his Fifth and Fourteenth Amendment due process rights.

The defendant’s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. See Commonwealth v. Bcg Cover. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and the voluntariness of statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an affirmative finding on the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is rights contest, allowed to consider them. Order. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (“special care is taken to nra civil, review the issue of voluntariness where the narrative essay chronological order defendant claims to nra civil rights essay, have been under the influence of power historical essays drugs or alcohol”).

Such special care with regard to intoxication is rights essay, necessary; the United States Supreme Court has noted, “as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the `voluntariness’ calculus.” Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner’s probationary status. See United States v. Gravina, 906 F.Supp. 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. Compare United States v. Gravina, supra at 54, quoting from United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (“an element of pleasure book reading constancy should be present in the type of harassment necessary to invoke the exclusionary rule…. [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present”). While the police officers were aware of Simon’s probationary status, only.

two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Nra Civil. Gravina, supra at 53-54. See also note 9, supra. Further, the police had already placed the pleasure book defendant under arrest for nra civil contest driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on that offense, rather than for the purpose of eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (“The Federal courts have concluded that, in tsi writing essay, most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Essay. Revocation of oedipus vs hamlet probation is generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from such proceedings is nra civil, likely to have only a marginal additional deterrent effect on pleasure reading illegal police misconduct”).

In addition, we note that the United States Supreme Court has drawn no distinction in nra civil rights essay contest, its analysis of the “voluntary” waiver of the personal right against essay, self-incrimination protected by essay contest the Miranda warnings on the one hand, and the due process-based “voluntariness” of a statement protected by the Fifth and bcg cover, Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at nra civil rights essay, 169-170, 107 S.Ct. Narrative. 515. Similarly, the Supreme Court “cautioned against expanding `currently applicable exclusionary rules,’” into an area where they could serve little purpose in the protection of constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. 515, quoting from Lego v. Nra Civil Contest. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in power and the new mandarins and political, these circumstances. “In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.’ See Commonwealth v. Contest. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct.

613, 38 L.Ed.2d 561 (1974).” Commonwealth v. Olsen, 405 Mass. at book reading, 493, 541 N.E.2d 1003. “`Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and rights essay contest, continues to pose a threat to the public.’ Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Case Houses. Accordingly, the State has an overwhelming interest in being able to return an nra civil rights essay, individual to case studies houses, imprisonment without the burden of a new adversary criminal trial if in fact [the probationer] has failed to abide by rights essay contest the conditions of his [or her probation].’ Morrissey [v. Brewer, 408 U.S. 471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.” Commonwealth v. Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant’s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is tsi writing essay, no evidence that the statement was the product of contest police harassment or the result of a police focus to narrative, obtain evidence specifically for rights a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the case studies statement, that he operated the vehicle from his home to Crosby’s home that morning, is insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is rights essay contest, hearsay, reported by one officer, and contradicted by other evidence in the hearing. Although a probation revocation hearing is historical, not a criminal trial, and the defendant need not be given the “full panoply of constitutional protections,” due process requires that probationers be afforded some protections upon an attempt to nra civil essay, revoke their probation, as liberty interests are at stake. Commonwealth v. American And The. Durling, 407 Mass. at 112, 551 N.E.2d 1193.

The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered. See id. at 113-117, 551 N.E.2d 1193. Even the right of confrontation may be denied if the “hearing officer specifically finds good cause for essay not allowing confrontation.” Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the essay ultimate goal of providing an accurate determination as to whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant’s statement. Nra Civil Contest. It is undisputed that the two went to the football game in the defendant’s car. The defendant lived a distance from Crosby’s home, and vs hamlet essay, the two were returning there when they were stopped by the police. Nra Civil Rights Contest. No other explanation was offered of how the defendant and his vehicle got from his home to Crosby’s.11 The cases cited by the defendant in oedipus vs hamlet essay, his brief, Commonwealth v. Nra Civil Essay Contest. Forde, 392 Mass. Oedipus. 453, 457, 466 N.E.2d 510 (1984), and Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to corroborate the admission. As there was corroboration in this instance, we need not reach the issue whether corroboration is in rights essay, fact necessary for oedipus vs hamlet an admission in the context of a hearing on nra civil rights essay contest surrender. As to the claim that the essay hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to driving earlier in nra civil rights, the day, and that he had made a note of it in his police report.

Read was present at the hearing and subject to cross-examination. The statement was an narrative chronological order, admission against interest made by the defendant to police officers at nra civil essay, a time when the tsi writing essay officers were investigating him for another alleged crime, operating under the influence. Contest. The defendant, though present in pleasure book reading, court, chose to remain silent. Declarations against penal interest are admissible for the truth of the matters asserted. See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at 516 (7th ed.1999). The hearsay was both credible and reliable. Order revoking probation affirmed. 1. Contest. See, e.g., Commonwealth v. Villalobos, 437 Mass. 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced).

2. Essay. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of a guilty finding and the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Officer Read at the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to Read’s initial questions. Rights Contest. Any variance is not material to our decision. 4. At the book essay conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby’s statement. In his written findings, the nra civil judge noted that he found the tsi writing essay defendant in violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the nra civil contest finding included “Mashpee police reports”; “Statement of Kevin Crosby”; “Mashpee P.O. John Read”; “Breath test on D.” Given the written finding that revocation was based on essay “Operating motor vehicle while suspended,” and rights contest, the judge’s unequivocal statement that he was not relying on Crosby’s statement, we adopt the view that the revocation was based on the defendant’s admission that he had been operating the vehicle earlier that day. Case Studies Houses. Both the Commonwealth and the defendant adopt that position in this appeal.

5. With respect to rights, the alleged violations, the notice stated in full: “You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the bcg cover [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. Essay. # 0089CR00009B op. after susp. lic.” 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby’s statement that the oedipus vs hamlet defendant was driving, there is ample additional circumstantial evidence to tie the defendant to essay, the operation of the vehicle at the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth’s arguments in this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for bcg cover letter Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Coronella’s report states in pertinent part: “During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to nra civil, take the pleasure book reading breath test. [The defendant] was given the test and the results were as follows…. [The defendant] was again asked how he got to the … game. He stated that he drove from rights contest his house in Brockton to tsi writing, Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to nra civil rights essay, the game.” Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station. 9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to evidence seized in violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is book, inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the target’s probationary status, but not where a police officer is nra civil essay contest, unaware of essay that status; and (4) the Fourth Circuit “stands alone” in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and nra civil rights essay, Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed.

824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the studies question whether a police officer’s knowledge of a probationer’s status would compel exclusion of evidence obtained. 11. Nra Civil Essay. Defense counsel makes much of the case fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby’s home.

This statement came after vigorous cross-examination in nra civil rights essay, which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to narrative essay, Crosby’s. Any determination of the weight and credibility of Read’s testimony was for the judge, and the contradiction was not so egregious as to cause us to rights essay contest, conclude that the chronological judge committed plain error. See Commonwealth v. Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the trooper, although he had made no observations of the nra civil rights manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for bcg cover letter administration of field sobriety tests. 76 Mass.App.Ct. 908. Cheryl A. BAZINET.

Appeals Court of nra civil rights essay contest Massachusetts. James M. Essay. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on nra civil essay Route 20 in the town of Auburn on July 22, 2007. A State trooper working the essay checkpoint spoke with her and detected an rights essay contest, odor of alcohol. Consequently, the oedipus vs hamlet essay trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to rights essay contest, the checkpoint for administration of field sobriety tests. When Bazinet stepped out of the vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on essay her breath as she spoke.? Bazinet consented to a breath test which revealed an alcohol level greater than .08%, and she was charged with operating under the influence. See G.L. c. 90, ? 24(1)( a )(1). Before trial, Bazinet moved to dismiss the complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements.

Before hearing the motion, a judge of the District Court reported the case for rights contest an answer to two questions of law he said arose frequently in the District Court. See Mass.R.Crim.P. Vs Hamlet. 34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Nra Civil Rights Essay. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991).

The questions are these: ?1. And The New Mandarins Essays. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the operator is essay contest, OUI, to further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an operator for further testing? ?2. Is the Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to case studies houses, the sobriety checkpoint stop in essay contest, question on.

July 21, 2007 through the Division Commander’s Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the reported questions was discussed by the Supreme Judicial Court in pleasure reading essay, Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the rights contest report. In essence, the court in case, Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to nra civil contest, the officer in charge of a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the decision in Murphy requires an bcg cover, affirmative answer to both questions. Nra Civil Rights. Insofar as question one is concerned, General Order TRF-15 permits, and narrative chronological order, now requires, see Murphy, supra at 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is rights contest, reasonable suspicion, based upon articulable facts, that the operator … is committing … an tsi writing essay, OUI violation.? In Murphy, the troop commander’s order, like the troop commander’s order in this case, stated that further screening after the contest initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.?

Murphy, supra at 321, 910 N.E.2d 281. The court said that the ?odor of pleasure book alcohol? was one of the ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for further screening and investigation. Id. at nra civil contest, 320, 328, 910 N.E.2d 281.2 The court’s judgment in new mandarins historical, that regard is consistent with judgments made by nra civil contest courts in other States that have considered similar questions. See State v. Vs Hamlet Essay. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the nra civil rights motorist has recently consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Houses. Hernandez-Rodriguez, Ohio App. 11th Dist. No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the influence?).

Turning to question two, the essay contest opinion in Murphy did not consider the Division Commander’s Order 07-DFS-056, which is designed to pleasure, cover all highway safety programs, not simply those designed to detect drivers who are impaired by alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by nra civil rights contest General Order TRF-15 and by houses operational instructions contained in a letter from the troop commander to the officer in charge of the contest checkpoint, as well as by Order 07-DFS-056. Essay Chronological Order. Order TRF-15. and the operational instructions are, in all material respects, identical to essay contest, the instructions discussed by the court in Murphy. As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional. Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the pleasure book essay kind of discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass. Rights Essay. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Vs Hamlet. Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989).

In light of the foregoing, the answer to reported questions one and two is ?yes.? 1. This appears to be a typographical error. The Division Commander’s Order included in contest, the record appendix is numbered ?07-DFS-56.? 2. The court’s complete list of ?clues of impaired operation? was ?the condition of the eyes of the operator, the odor of alcohol, the speech of the essay operator, alcohol in plain sight in nra civil rights contest, the vehicle, and new mandarins and political, other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Later in the opinion, the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in nra civil rights contest, plain view),? omitting ?odor of alcohol? from american and the new mandarins historical that list.

Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission. As a consequence of essay a motor vehicle accident on bcg cover letter January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. Nra Civil Essay Contest. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. Essay. 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to essay, its rule 1:28 are primarily addressed to tsi writing essay, the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale.

Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). On the day following the rendition of the jury’s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of OUI, fourth offense, G. L. c. Nra Civil Rights Contest. 90, § 24(1)(a)(1), sixth par. On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver’s license for prior conviction of OUI, G. L. American And The New Mandarins. c. 90, § 23. Upon the convictions for OUI fourth, the rights essay contest judge sentenced the defendant to pleasure reading, four and one-half to five years’ confinement at State prison; upon the conviction for operation after suspension or revocation by nra civil rights contest reason of prior OUI conviction, the judge imposed a sentence of two and letter, one-half years’ confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to run concurrently with her sentence at rights, State prison. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for determination of the chronological order exposure of members of the jury to prejudicial publicity during the course of the trial; and (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences.

For the following reasons, we reject the defendant’s appellate contentions and affirm the convictions and the sentences. Factual background. The evidence permitted the jury to find the following facts. On the afternoon of rights January 26, 2008, the defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and tsi writing essay, 6:00 P. M. At about 6:00 P. Essay Contest. M., she left the book house in order to purchase take-home food from nra civil rights essay a delicatessen in pleasure book, the city. She took with her an additional can of beer, opened it, and put it in her handbag in the car. At a major intersection in Lynn and after she had taken a drink from the open can, she made an unlawful turn across three lanes, up and over a median island, and contest, across two more lanes, so as to american power historical and political essays, drive up to and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). The impact of essay travel over the island and oedipus vs hamlet essay, possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance. She did not respond to his instruction to put the car in park gear; he did so and turned off the ignition. Nra Civil Rights Contest. He noticed that her speech was slow and that an odor of alcohol was in letter, her breath.

A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the contest automobile. He formed the opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the case studies case. The story carried the headline, ‘Trial begins for Lynn mom charged with 5th OUI.’ The article stated that she had incurred three ‘drunken driving’ convictions during the nra civil essay contest 1990?s and a fourth in 2004. The article stated also that she ‘blew a.15 alcohol blood level when arrested’ for the current incident. At the beginning of the third day of trial, all counsel and the judge discussed the appearance of the article. When the jury entered the courtroom, the judge addressed the following question to them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of this case outside of the tsi writing courtroom, since yesterday, that has affected or would affect your ability to consider this case in any way as a fair and impartial juror? Nobody’s raising their hand.’

He added a second question. ‘Has anybody seen or heard anything about essay any publicity from the news media about this case? Please raise your hand if there is any–anything you’ve heard at narrative essay, all, even the tiniest thing. Okay, nobody is nra civil rights, raising their hand. Okay. All right, so we will resume with the bcg cover letter trial.’ Defense counsel did not object to the judge’s treatment of the issue of exposure to prejudicial publicity by these questions. Later that day, after the close of the nra civil rights essay contest evidence and in the course of oedipus final instructions to the jury, the judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in the courtroom.

Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the nra civil essay contest jury verdicts, the finding of the bench trial, and bcg cover, the submission of the plea of rights essay contest guilty to operating after suspension or revocation for oedipus vs hamlet essay prior OUI violations, the nra civil rights contest judge imposed sentencing from the bench. His comments included the following. ‘This is a sad case. I understand that I have a limited amount of case studies information about what happened and about the [d]efendant, but it’s pretty obvious to me that, from what I have received, that the [d]efendant Ms. King is probably a very nice person and she probably–it’s not hard to see that she’s probably had a difficult life; I am sensitive to these things. But the sentence I’m going to impose is necessary, in contest, my view.’ The judge then specified the sentence for each offense. Narrative Essay Chronological Order. At the conclusion of his announcement of the respective sentences, he made the following one-sentence statement. ‘I assume it’s obvious what my feelings are about why this sentence is required.’ The remark brought no objection.

On the same day, the nra civil rights contest judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for reading explanation of the departure from the guidelines, he wrote, ‘Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.’ Newspaper article. On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to nra civil essay contest, determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by american and the and political reason of its information about a breathalyzer test result and rights contest, the defendant’s prior OUI convictions. Because the defendant lodged no objection to the judge’s preventive or curative efforts at the time of trial, we review this argument under the narrative essay chronological standard of substantial risk of a miscarriage of justice. We review the rights contest case as a whole and ask (1) whether an case, error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel’s failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judge’s management of the issue.

The defendant relies upon the case of Commonwealth v. Nra Civil Rights Contest. Jackson, 376 Mass. 790, 800-801 (1978). The court in narrative chronological, that instance set out the following standard operating procedure for instances of discovery of rights contest potentially prejudicial publicity during the course of trial. ‘If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the letter material, there must be individual questioning of that juror, outside of the nra civil rights presence of any other juror, to determine the extent of the juror’s exposure to the material and its effects on studies the juror’s ability to render an impartial verdict’ (emphasis supplied). The thrust of the defendant’s argument here is nra civil essay, that the judge had a duty, not an option, to conduct individual voir dire questioning of the oedipus vs hamlet jurors. As the governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the rights essay contest judge has no further duty to carry out individual questioning.

Consequently, the judge here complied with the standard of the Jackson rule. In addition, we should observe that, in narrative essay order, the absence of any affirmative answers to the collective question, a judge’s continuation into individual interrogation of contest jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to search for it during the course of a trial. That danger has become all the book essay more serious as a result of the evolution of Internet technology. Nra Civil Rights Essay Contest. Both doctrinally and practically the judge committed no error in these circumstances. Pleasure Book Essay. 1. Sentencing.

The defendant argues that the nra civil essay judge’s reference to ‘feelings’ about the american power and the historical and political imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by case law, particularly the case of Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, ‘A trial judge must be ever vigilant to make certain that his personal and rights essay contest, private beliefs do not interfere with his judicial role and transform it from that of impartial arbiter.’ Id. at 401. The defendant characterizes the reference to ‘feelings’ as a forbidden indulgence of case studies ‘personal and private beliefs.’ The judge’s fleeting reference here falls far short of the nra civil rights essay contest prohibited comments discussed in the Mills case and in any of the decisions cited by book reading essay the Mills discussion. We view the reference to ‘feelings’ in the setting of the judge’s entire remarks about contest sentencing. In that light, it reflects reasons and case studies, not emotion. He commented that he viewed the case as a ‘sad’ one. Since it involved no personal injuries or casualty, his reference to its ‘sad’ character alluded to the fate of the defendant. He observed that she may well have had a hard life.

He observed also that he was ‘sensitive’ to her circumstances. At the same time, he found her behavior over rights essay the decade and one-half covered by her four OUI convictions to constitute a serious threat to public safety. He justifiably viewed her record as ‘egregious.’ She embodied a danger to essay order, the lives of innocent travelers and pedestrians on and near the roadways. His sentencing scheme removed that peril for the period of years imposed for confinement. Rights. The sentencing fell within the bounds of rational discretion. By the narrative order Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the defendant’s argument is that the nra civil essay contest judge had a duty to vs hamlet essay, make specific reference to the Lynn Item article in his collective question to nra civil, the jury. The Jackson case creates no such duty.

Specific reference would raise the risk of juror research. The judge’s choice created no error of law or abuse of discretion. Mass DUI OUI “Not Public Way” – Observed obviously intoxicated and urinating in essay, public immediately after driving onto essay, a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. 76 Mass.App.Ct. 830. Appeals Court of Massachusetts, Argued Feb.

3, 2010. Decided June 1, 2010. Sharon Dehmand for studies houses the defendant. Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in rights, sentencing the american power historical defendant. Essay. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard.

The pier is surrounded on all sides by water and accessible by automobile only by way of public streets.1 Those streets end at Terry Ring Way. As described by a police officer, ?Off of Terry Ring way, there is tsi writing essay, a short paved area that cars can go down and nra civil essay, stop about studies fifty yards down.? Entry to rights essay, the pier is then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. Narrative Chronological Order. According to the Commonwealth witnesses, signage to rights essay, the pier stated that only authorized vehicles were allowed on american and the new mandarins and political essays the pier. The pier was paved and nra civil, had streetlights.

At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to bcg cover letter, a drop-off location adjacent to Pier 4.2 While walking from the nra civil rights essay ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of oedipus vs hamlet him. This caught his attention because he understood from signage at the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on nra civil rights essay the pier. The vehicles he had seen on the pier were ?usually the director’s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on would had to new mandarins historical, have gone across the wooden boards into the section down on the pier; there’s no motor vehicles at all, it’s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Nra Civil Rights Essay. Pedestrians go down there, there’s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the defendant from driving, but the defendant got back into the truck and attempted to leave the scene. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from and the historical essays leaving by opening and closing the truck’s doors and by nra civil contest closing the gates to the pier.

Subsequently, Smargiassi called 911, and firefighters arrived and american power and the historical, held the defendant. Shortly thereafter, the national park rangers and Boston police arrived. After examining the nra civil truck, in which they found beer, and talking to the defendant, the essay police placed the defendant under arrest. 2. Public way. In order to sustain an rights essay, OUI conviction, the Commonwealth must prove that the case studies houses offense took place ?upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of nra civil rights contest park commissioners or body having like powers.? G.L. c. 90, ? 1. American And Political. This element has been further interpreted by the Supreme Judicial Court to require that the ?public have a right of access by contest motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass.

635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. 1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of narrative essay its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996).

In making that determination, we look to nra civil essay contest, see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is tsi writing essay, open for essay travel….? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16. See Commonwealth v. Power And The. Stoddard, 74 Mass.App.Ct.

179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Nra Civil Essay. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of oedipus essay public accessibility). Nra Civil Contest. Indicia that the way is bcg cover letter, not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Nra Civil Rights. Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of bcg cover a gate severely restricting general access to the campground is of great significance?). Rights. Deeds are also relevant considerations.

See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). The focal point of the pleasure case was whether Pier 4 was a public way. To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and nra civil essay contest, egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,? and testimony regarding the presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to authorized vehicles. The Commonwealth’s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question. There was ample evidence that the pier was public and studies houses, a way and paved and lit in essay contest, a manner suitable for vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted.

As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the book defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the nra civil essay term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the drinking and houses, driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the presence of a gate and signage are strong indicators that restrictions on public vehicular access were in essay contest, place. Book. However, the gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and rights contest, Authorized Persons Only? ?). Compare Commonwealth v. Oedipus. Smithson, 41 Mass.App.Ct. at nra civil rights essay, 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the road as one approache[d] the american and the historical and political essays entrance? and physical circumstances did not suggest a public way). The deed also expressly provided for vehicular access to the public. The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in nra civil, the absence of case studies signage to rights contest, the contrary.

We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of essay alcohol not only on the pier, but also on rights essay the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to american new mandarins and political, get to the pier by nra civil contest automobile except by the public roads connecting to the pier. Chronological Order. The defendant was also observed driving quickly, close to essay contest, the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the and the new mandarins and political essays pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. Nra Civil. The defendant was observed immediately upon vs hamlet essay his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public. Nra Civil Contest. Proof of order operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. Nra Civil Contest. 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Essay. Here there was sufficient circumstantial evidence to provide the rights essay necessary proof of all three elements of the oedipus offense: the public way, the driving, and the impairment.

Moreover, the judge’s instruction to the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on nra civil contest public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by some level of government is what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.? Thus, the instructions on public way encompassed the oedipus essay public roads on which the defendant testified that he drove to nra civil rights, arrive at the pier. 3. Remaining issues. We need not belabor the reading essay remaining issues. First, trial counsel’s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel’s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to nra civil contest, take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the pleasure book reading essay defendant’s argument that the judge considered improper factors in sentencing is without merit.

The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of rights limb after being run over by a drunk driver over case thirty years prior, and making a plea for the judge to keep the defendant from injuring other people. Although the judge briefly mentioned Spinetto’s community impact statement in her sentencing remarks, it is contest, clear that the defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the bcg cover sentence was within the statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. (concurring). I concur fully in the specific rationale of the nra civil rights contest affirmance: that the evidence and the judge’s proper instructions permitted the jury to narrative chronological order, find that the defendant had driven under the influence of alcohol on the public roads leading to the pier. Ante at rights contest, 835, 927 N.E.2d at 500. That analysis freed us from the need to resolve the pleasure book essay ?close question? whether the pier constituted ?any way or … any place to which the public has a right of rights essay access, or … any way or … any place to which members of the essay public have access as invitees or licensees….? G.L. Nra Civil Contest. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of precedent restrictively construing the statutory terms ?way? and ?place.?

As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the studies same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and the need for examination of the underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon any way or in nra civil contest, any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle … while. under the influence of case studies intoxicating liquor … shall be punished….? 3. The opinion of the court describes the location, the access roads, the gate, and rights essay, signage related to the pier. American And The Essays. Ante at 833-835, 927 N.E.2d at 499-501. Four important and independent circumstances of the use of the rights pier emerge as well from the evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to a terminal at the edge of the pier from which they could walk across it.

An instructional sailing club conducted a program for book reading essay children from the nra civil rights contest pier; their parents and friends would observe their. races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and case houses, endangered by the defendant’s driving were pedestrians. Additionally, the evidence permitted the jury to make the following findings about the defendant’s conduct. Essay Contest. He drove his pickup truck at a high speed onto the pier; got out and urinated onto one of the benches; reentered the truck and backed into another bench; and then backed up further so as to collide with a storage shed used by the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law. A sensible and direct application of the oedipus vs hamlet words of the nra civil rights statute to the circumstances of the pier and the actions of the oedipus defendant would appear to make him punishable. However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.?

Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to rights essay, affirm the conviction of the essay defendant, not on the basis of his extraordinary conduct on the pier, but rather on the basis of his inferable driving down separate roadways. The original act punished simply operation under the influence ?on any public way or private way laid out under authority of law.? St.1906, c. Rights. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on american power and the a ?way? stated that ?[t]he statute was passed for the protection of nra civil travellers on highways,? and therefore presumably persons in order, motor vehicles. See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E.

829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the essay engine by the driver amounted to essay, operation; the nra civil rights essay contest statute ?was passed for bcg cover the protection of travellers upon essay highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon ways?). In 1928, the Legislature rewrote the american power new mandarins and political entire provision. Its opening main clause now declared, ?Whoever upon any way, or in any place to which the public has a right of access, operates a motor vehicle … while under the influence of nra civil intoxicating liquor … shall be punished …? (emphasis supplied). G.L. c. 90, ? 24, as appearing in bcg cover letter, St.1928, c. 281. Thus the notion of statutory protection for highway travelers or motorists took hold in the version of the nra civil rights act predating any reference to operation in book essay, a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the concept of a ?place? as the site of operating under the essay influence. Despite the added term, the court in Commonwealth v. Tsi Writing. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over it, even though the owner of the rights private way had permitted use of it by members of the public as business invitees or business licensees to a nearby restaurant and a market building. The court reasoned that the canon of strict construction of penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the public as business invitees or licensees.

Ibid. Three years later the essay Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. Nra Civil Essay Contest. 347. In one subsequent case, Commonwealth v. Vs Hamlet Essay. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the influence?), the court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?).

In another it determined that the rights contest defendant’s operation of his pickup truck on a privately owned parcel of pleasure book land onto which persons would drive various recreational vehicles such as ?go carts? without the owner’s permission did not involve a ?place to which the members of the rights essay contest public [have] access as invitees or licensees? because the owner had never consented to such entry. Commonwealth v. Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of power new mandarins historical and political strict construction of penal legislation against the Commonwealth applied to its terms. Id. at 205, 539 N.E.2d 533. ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid. In its last assessment of this portion of the act in 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and nra civil rights essay, ?no trespassing? signs blocked entry onto the field.

Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. 4. The issue.

None of the cases appears to have addressed the applicability of the statute to places to which members of the public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the first source of insight into bcg cover letter, its meaning and legislative intent. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of nra civil rights essay Correction v. Superior Court Dept. of the Trial Court, 446 Mass. Bcg Cover Letter. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in any place? accessible to members of the public as invitees or licensees. Nra Civil. The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the generality of the intended ?place.? The Legislature did not confine the roles of invitees or licensees to essay, persons conveyed by motor vehicles. Nra Civil Rights. It.

chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by the then recent Paccia decision, 338 Mass. at american and the new mandarins essays, 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the nra civil contest courts have pointed out that the bcg cover letter act’s penal character requires strict interpretation. See Commonwealth v. Rights Essay. Paccia, 338 Mass. at chronological order, 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Essay. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute’s meaning?); Commonwealth v. Vs Hamlet Essay. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against rights essay contest, the Commonwealth?). If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the law’s limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of pleasure reading essay lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an nra civil, available and sensible interpretation is to essay, be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass.

647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Essay Contest. Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in a discussion of the scope of the tsi writing essay act. One is that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. 90, ? 24G [ a ], against the defendant’s contention of nra civil rights essay redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. Case Houses. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature’s addition of the word ?place? in essay, 1928 meant something more than a ?way.? Both the tsi writing essay statutory definition of nra civil contest ?way,?

G.L. c. 90, ? 1, supra at note 4, and pleasure book essay, the general ordinary meaning depict an artery supporting some degree of traffic or movement. By contrast, a ?place? denotes a far more generic location unrestricted to the conveyance of nra civil rights essay traffic. If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the term ?place? by reading the Legislature expanded the diameter of the rights essay contest statute beyond the focus of the early decisions on protection of highway travellers. Other standards of interpretation forbid courts to add language to the terms chosen by the Legislature. Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by inadvertent omission or by studies design?). Rights Essay. See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass.

661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the phrase ?by motor vehicle? to the Legislature’s words ?any place to which the public has a right of access, … or … any place to which members of the public have access as invitees or licensees.? That narrowing addition undercuts the reading essay legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for nra civil rights essay the protection of members of the public as motorists but not as pedestrians produces at american power and the new mandarins historical, least an rights, irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways. It excludes from the protection of the statute members of the studies houses public least expecting, and nra civil rights contest, most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for american power new mandarins protection against impaired drivers because they entered them on nra civil rights foot.

That interpretation opens a substantial gap in letter, the coverage of the act. It shifts the application of the nra civil rights essay law from the irresponsible conduct of the impaired driver to the fortuitous location and status of his endangered or injured victim. Solutions. A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the houses statute. The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator’s use of public roads adjoining the place in which the nra civil rights essay impaired driving injured or endangered pedestrians, as occurred here. Bcg Cover. Within the rights essay judiciary the Supreme Judicial Court could reconsider the present construction said by the court in George to have evolved without discussion.

Finally, and perhaps ideally, the Legislature could further amend the statute to extend its reach unmistakably to ?any place in which the public has a right of access, or … any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Vs Hamlet. Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the rights essay contest exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to pleasure reading, drive to the Charlestown Pier. He then drove in traffic on public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the Commonwealth’s case on the public way question, we do not consider the defendant’s testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. Rights Contest. George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of law, a public way.?

Id. at 636, 550 N.E.2d 138. 4. Bcg Cover. The evidence in Commonwealth v. Nra Civil. George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and tsi writing essay, overturned the car while trying to leave the field. In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the nra civil defendant was driving under the influence on public roads prior to his arrival at the pier. 5. We recognize that the Commonwealth ignored this obvious alternative in letter, arguing its case to the jury. Rights Essay. Nonetheless, as explained below, the judge’s instructions and the proof offered adequately presented the issue for the jury’s consideration. 6. The passenger left the car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination.

8. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and narrative chronological order, this defendant’s prior record, having considered the mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the prosecutor in rights contest, the case and the recommendations of the and the and political essays defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Contest. Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988). Commonwealth v. Dube, 59 Mass.App.Ct. Reading Essay. 476, 485-486, 796 N.E.2d 859 (2003), and nra civil rights essay contest, cases cited.

That limitation, however, does not bar the court from historical and political essays useful observations in dicta about the essay continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. Pleasure Essay. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the rights essay contest then existing rule imposing a duty to pay rent upon narrative chronological a nonresidential tenant independently of the landlord’s breach of covenants in nra civil rights essay contest, the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass. 708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the studies insertion of standards or rules to cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct.

190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of that view by the Supreme Judicial Court, S.C., 442 Mass. Nra Civil Rights Essay. 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the Supreme Judicial Court, in its last treatment of the pleasure essay issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. 25, ? 3, and by St.2003, c. Essay Contest. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the bcg cover letter Appeals Court has consulted the definition of rights contest that term by tsi writing G.L. Rights Essay. c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to and the historical, public use, or way under the control of park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.?

Ante at 833, 927 N.E.2d at 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for conviction of nra civil rights essay contest operating under the influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and which was indisputably open for travel by motor vehicles. Commonwealth v. Studies. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by nra civil rights prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY. Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to and the historical and political, formal revision and are superseded by the advance sheets and bound volumes of the rights contest Official Reports.

This preliminary material will be removed from the Web site once the case houses advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by rights contest prosecutor, Defendant’s decision not to essay order, testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in the Superior Court Department on rights essay contest January 26, 2005. The case was tried before Howard J. Whitehead, J. James P. McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for the Commonwealth.

Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the pleasure essay influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. 90, § 24(1)(a)(1). 1 His principal issue focuses on essay contest the meaning of “operation” under that statute. We affirm. 1. Operation of the motor vehicle. A. Operation as matter of law.

At trial, the Commonwealth pursued only letter one theory: that the defendant, who was under the influence of nra civil rights essay contest intoxicating liquor and american power new mandarins, was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the engine on. There was no evidence from nra civil essay contest which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Chronological Order. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). Nra Civil Rights Essay Contest. The defendant argues that the evidence of operation was insufficient as matter of chronological law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged.

2 The issue whether a defendant who places the key in essay contest, the ignition and turns the electricity on without starting the engine may be found to be “operating” the vehicle for purposes of G.L. c. 90, § 24, is one of first impression in Massachusetts. 3. To define “operation” we must look to the touchstone case of case houses Commonwealth v. Nra Civil Contest. Uski, 263 Mass. Narrative Chronological Order. 22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of rights operation).

Under the case houses Uski definition, turning the key in the ignition to nra civil rights essay contest, the “on” setting could be found to be part of tsi writing a sequence that would set the rights essay vehicle’s engine in motion and that would, thus, constitute operation. 5. Our conclusion is bcg cover, informed by the public policy underlying the Massachusetts OUI statute. Nra Civil Essay. The purpose of G.L. Vs Hamlet. c. 90, § 24, is to “protect[] the public from intoxicated drivers,” Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by nra civil essay “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf.

State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the oedipus movement of nra civil rights essay contest a motor vehicle while intoxicated…”). Even an intoxicated person who is sleeping behind the pleasure wheel is dangerous because “that person may awaken and nra civil, decide to oedipus vs hamlet essay, drive while still under the influence.” State v. Kelton, 168 Vt. 629, 630 (1998). 6. In sum, applying the rights essay Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in bcg cover, the passenger’s seat, turned the ignition key–an act which the essay contest jury could have found to be the first step in a sequence to set in oedipus vs hamlet essay, motion the motive power of the nra civil contest vehicle–was sufficient to permit the case houses jury to contest, conclude that he “operated” the motor vehicle.

See also State v. Haight, 279 Conn. at studies, 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an nra civil rights contest, act that is part of tsi writing a sequence that will “set in motion the motive power of the vehicle”) (citation omitted). 7, 8. We are unpersuaded by the defendant’s interpretation of nra civil rights essay Commonwealth v. Ginnetti, 400 Mass. at pleasure essay, 184, as requiring that an engine be engaged and as meaning that turning the key to the “on” position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to a position that does not start the car would only draw power from the nra civil battery and thus neither starts the engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the defendant is correct and that turning the key to the “on” position does not engage the engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the american historical and political essays meaning of G.L. c. 90, § 24, “merely because it is immovable due to nra civil, road or other conditions not involving the vehicle itself.” Id. at oedipus vs hamlet, 184. Applying the Uski definition to the facts before it, the court concluded that “the defendant… operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine.” Id. at rights essay, 183-184. In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the jury instructions were inappropriate. The judge’s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant’s claim, the oedipus instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver’s seat with a key turned in the ignition compelled a finding of operation.

Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. B. Sufficiency of the rights contest evidence. Oedipus Vs Hamlet. The defendant, who does not challenge being under the influence of intoxicating liquor 12 or the fact that the vehicle was on a public way, 13 argues on appeal that the Commonwealth failed to nra civil contest, present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. c. 90, § 24(1)(a)(1). More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in the ignition of the car and turned the key. We consider “whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient… to bcg cover letter, permit the jury to infer the existence of the essential elements of the rights crime charged…” beyond a reasonable doubt. Tsi Writing. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the defendant was found asleep in the driver’s seat “slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.” The defendant’s feet were “right in front of him.” The vehicle’s dashboard was illuminated.

The key was in the ignition and had been turned to nra civil, the “on” position so that the “energy to the vehicle was on,” but the engine itself was off and “[t]he vehicle was not running.” The police officer had to “physically turn the ignition back” in order to remove the key. The police did not observe anyone else in the van at the time of arrest. Viewed as a whole, the evidence was sufficient to support a finding that the studies houses defendant, while sitting in the driver’s seat of the nra civil rights essay contest vehicle, put a key in the ignition and turned it to the “on” position. See Commonwealth v. Cabral, 77 Mass.App.Ct. American Power And The. 909, 909 (2010) (“Circumstantial evidence may be exclusive evidence of essay contest operation of a motor vehicle, a required element of OUI”), citing Commonwealth v. Petersen, 67 Mass.App.Ct. Studies. 49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by nra civil rights the defendant and the arresting officer that the defendant, upon being awakened by the police officer, told the officer that the officer did not have the vehicle’s keys. The defendant testified that, after he moved to the driver’s seat and bcg cover, began eating his food, he did not remember what happened until the police officer woke him up.

The jury, however, could have found that the defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in denying putting the key in nra civil essay, the ignition. Moreover, the tsi writing essay existence of contradictory evidence does not require a finding of rights not guilty. See Commonwealth v. Letter. Pike, 430 Mass. 317, 323-324 (1999). Second, the nra civil rights essay contest defendant points to letter, the testimony of his friend that the friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the rights essay vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the bcg cover jury could reasonably have inferred that the defendant, who admitted moving from the essay contest passenger seat into the driver’s seat, picked up the key and book essay, put it in the ignition when he moved to the driver’s seat. 2. Rights Contest. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree.

The prosecutor’s argument disputing the defendant’s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel’s argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). We also conclude that the prosecutor’s statement that the defense witness’s testimony corroborated the officers’ testimony was a fair representation of the evidence. B. The defendant argues that his right to bcg cover letter, testify was “improperly muzzled” at trial because he was not permitted to testify that he intended to sleep overnight in nra civil rights, the van so that he could go to essay, court in Gloucester the rights next day.

The defendant, however, was permitted to elicit testimony from the defendant’s friend that the defendant said he had to work early in the morning and tsi writing, planned to sleep in the van overnight. Furthermore, the contest record supports the conclusion that the defendant accepted his attorney’s strategic advice not to testify during his examination about power new mandarins historical and political his plans to sleep in the van because such testimony might open the door to evidence of prior convictions of driving under the influence. Nra Civil. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the defendant moved to replace his attorney, and the judge denied the motion.

The record reflects that as soon as the judge became aware of pleasure book reading essay a conflict between the defendant and his counsel, the defendant was provided an opportunity to explain his reasons for wanting to remove his attorney. The judge did not abuse his discretion in denying the defendant’s motion where (1) this trial counsel was the defendant’s third attorney; (2) the case was two years old; (3) although the rights essay contest defendant was upset with his attorney for arguing a motion for a new trial on his behalf, but without the defendant’s presence, the narrative essay order defendant’s presence would not have affected the outcome of that motion for a new trial; and (4) the defendant merely complained of something that any lawyer who represented him “who had any competence at all would do.” See Commonwealth v. Contest. Tuitt, 393 Mass. 801, 804 (1985). D. Case. The defendant argues that the judge abused his discretion by refusing to remove two jurors for essay contest cause. We disagree. With respect to each of the complained-of jurors, the judge dispelled any concerns about the juror’s bias through follow-up questioning, in which the jurors said they would consider all the evidence to determine whether a police officer was telling the truth in tsi writing, the event that the officer’s testimony was challenged.

A trial judge is afforded “a large degree of discretion” in contest, the jury selection process. Vs Hamlet. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). “Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is manifest.” Commonwealth v. Rights Essay Contest. Seabrooks, supra at 443. No such prejudice was manifest here. E. The defendant challenges the sufficiency of the evidence of prior convictions presented at essay, the subsequent offense portion of essay contest his trial. Reviewing the issue under the familiar standard of Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendant’s contention is without merit.

First, there was ample evidence that the defendant was the person who had been convicted of similar offenses once in 1986 and case studies houses, twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (“[registry of motor vehicles] records, which contained more particularized identifying information…, also reflected the nra civil essay contest offenses and the fact that they were the case studies houses defendant’s”). Nra Civil Rights Contest. See also Commonwealth v. Maldonado, 55 Mass.App.Ct. Oedipus Essay. 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. 368, 372 (2003).

Second, otherwise admissible certified records of nra civil contest convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5 (2010). Finally, the judge’s instructions to power and the historical and political essays, the jury with regard to the prior convictions were proper where the judge simply instructed the rights jury that the documents in bcg cover letter, question were OUI convictions and reminded the jury that the Commonwealth still had the burden to prove that the nra civil contest defendant was the and the historical and political person who had committed these previous offenses. F. Nra Civil Rights Essay Contest. There is no merit to the defendant’s contention that he was denied his right to studies, speedy trial. Pursuant to nra civil essay, Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.

910 (1979), “a criminal defendant who is not brought to trial within one year of the return day in american power new mandarins and political essays, the court in which the case is nra civil rights essay, awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay.” Commonwealth v. Montgomery, 76 Mass.App.Ct. Vs Hamlet Essay. 500, 502 (2010). The return day here was March 8, 2005. The defendant’s trial began on January 23, 2007, 686 days later. Rights Essay. “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the bcg cover letter delay.” Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Of the 686 days between those two dates, the docket sheet and documents filed in support or opposition to the defendant’s motion to dismiss show that many days are excluded from the calculation. Due to essay contest, jointly agreed upon continuances by the parties, at least 117 days are excluded. 15 See Barry v. Pleasure. Commonwealth, 390 Mass. 285, 298 (1983).

There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the defendant’s motion to dismiss, which was filed on December 13, 2006, and nra civil rights contest, decided on January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days. See Commonwealth v. Houses. Spaulding, 411 Mass. at 505 n. 4. Contest. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and tsi writing essay, trial, meaning that fewer than 365 days remain to count against the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the motion to nra civil essay, dismiss is affirmed. 18. 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. Oedipus Vs Hamlet Essay. 28, §§ 1, 2, provides in relevant part: “Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished…. “If the defendant has been previously convicted or assigned to nra civil, an alcohol or controlled substance education, treatment, or rehabilitation program… because of case houses a like offense three times preceding the date of the nra civil essay contest commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years….” 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct.

317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. 566, 568 (1926). 3. Oedipus Essay. If the evidence shows that a defendant was seated in the driver’s seat with the engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant “seated in the driver’s seat with the engine running and rights, a key in the ignition”); Commonwealth v. American And The New Mandarins Historical And Political Essays. Petersen, 67 Mass.App.Ct. Essay. 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. Bcg Cover. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of nra civil rights essay contest car with engine running and keys in ignition does not necessarily mandate a finding of operation).

4. In Commonwealth v. Uski, 263 Mass. at essay, 23-24, there was conflicting testimony about whether the defendant turned on the motor or simply placed the rights essay key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (“The defendant’s intention after occupying the driver’s seat is not an element of the statutory crime”). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (“We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and pleasure book reading essay, welfare of the public. Nra Civil Contest. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to bcg cover, the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the rights essay automobile and driven away”). 7. Cf. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the defendant did not operate the vehicle “[b]ecause the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment” of the vehicle); Propst v. Essay Chronological Order. Commonwealth, 24 Va.App.

791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the position of the key in the ignition is rights, a factor that a trial court should consider but does not create a bright line rule). 8. Letter. We do not decide whether any or all of the following could be found to be operation under G.L. c. Contest. 90, § 24: inserting a key in the ignition without turning it and without engaging the motor or the vehicle’s power; using an electronic remote starting device to start the engine of the car without inserting a key in narrative essay, the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in essay, the ignition to studies, engage either the electricity or the motor before going to sleep in a seat other than the driver’s seat. 9. In the absence of essay any evidence below regarding whether the key, when turned in the ignition to the on letter position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the jury instructions is the following: “The first element which the Commonwealth must prove is that the nra civil rights essay defendant operates a motor vehicle. The expression ‘operation of a motor vehicle’ covers not only all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in motion. To operate a motor vehicle, it is not necessary that the engine be running.

The intentional as opposed to accidental manipulation of reading any mechanical part of the vehicle, or the use of any electrical agency which alone or in sequence will set in motion the mode of rights essay power of the vehicle is sufficient in new mandarins, law to constitute operation. A person operates a motor vehicle, within the meaning of the law, when, in the vehicle, he intentionally does any act or makes use of rights any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in book reading essay, motion the motive power of the vehicle. The Commonwealth need not prove the defendant’s intention after occupying the driver’s seat.” 11. We also reject the essay defendant’s argument that “a stopped engine instruction” was required because the engine was stopped, and the stop was not incidental to and the and political, the operation of the vehicle.

See Commonwealth v. Cavallaro, 25 Mass.App.Ct. Nra Civil Essay. 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, § 24, includes “at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation”). Such an instruction was inappropriate here where the Commonwealth’s theory was that the defendant was operating the vehicle by putting the key in the ignition and turning it. This theory did not depend on any previous operation of the vehicle. 12. The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and was “highly intoxicated.” Furthermore, the arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and reading, had glassy, bloodshot eyes. 13. Nra Civil Essay Contest. The arresting officer testified that the vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the bcg cover letter Commonwealth failed to meet its burden by not introducing sufficient evidence that the defendant’s friend was not the person operating the vehicle.

See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is distinguishable from the current case because, here, the police only found one possible operator at the scene and the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and June 29, 2005 (the actual date of the pretrial hearing); and contest, (2) twenty-six days between August 19, 2005 (the first scheduled date for american and political essays the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing). 16. The defendant’s trial on nra civil an unrelated charge began on October 5, 2006. Pleasure Book Essay. The excluded period extends until fourteen days after sentencing.

See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to a mutually agreed upon continuance, a change in rights essay contest, counsel between the bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the requirement for a speedy trial, we do not compile a complete list of all excluded days.

18. The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. Narrative Essay Chronological. 276, § 35. Assuming, arguendo, that the judge denied the nra civil essay motion–there is no record of such ruling–and that this issue is properly before this court, we affirm. General Laws c. 276, § 35, applies only to mid-trial continuances and case studies, the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the statute. A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. Nra Civil Contest. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[2][a]). 75 Mass. Case. App. Ct. 643.

Appeals Court of nra civil rights Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass.

App. Ct. 644] A District Court jury found the defendant guilty of book reading essay motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. Rights Essay Contest. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[2][a]). The defendant, who is African-American, appeals upon claims that (1) the trial judge improperly allowed the Commonwealth’s peremptory challenge of the only African-American in case, the venire; (2) the trial judge improperly admitted evidence of the nra civil rights contest defendant’s blood alcohol content and erroneously instructed the jury on that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in reversible error. We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant’s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence.

Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of G.L. c. 90, § 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of G.L. Case Studies. c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Commonwealth’s motion to essay contest, amend the June 1 complaint to add an alternate theory of intoxication, a 0.08 percent “per se” violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct.

645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges. The trial judge sentenced the defendant to two and one-half years in the house of correction on the motor vehicle homicide charge and oedipus vs hamlet, a consecutive sentence of two years in the house of correction on contest the negligent operation charge. In December of 2006, the defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of studies 2007, the trial judge allowed the motion. Rights Essay Contest. The allowance of essay that motion is not at issue in this appeal.3. Background.

The evidence at trial included the following. On November 27, 2003, at approximately 8:30 P.M., the defendant’s jeep and the victim’s vehicle collided at nra civil rights, an intersection in studies houses, New Bedford. Four people witnessed the collision, and each of them testified at trial. According to contest, the witnesses, the defendant’s jeep went through a stop sign at a high rate of speed and struck the victim’s vehicle. Narrative Essay Chronological. A New Bedford police officer arriving at nra civil essay, the scene after the accident saw the american power and the new mandarins historical and political essays defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Essay Contest. Paramedics took the defendant to the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash.

She analyzed the damage to the vehicles and made numerous measurements of the oedipus vs hamlet essay crash scene. Based on her investigation, the nra civil essay expert concluded that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass. And The New Mandarins. App. Rights Contest. Ct.

646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was “angry [and] agitated” and his breath smelled of alcoholic beverages. He told the essay officers that he had consumed “a forty of OE,” a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant’s demeanor changed when one of the officers notified him of the nra civil victim’s death. While at the hospital, the defendant complained of studies houses pain in his chest. Nra Civil Rights Essay Contest. In response to his complaint, hospital staff drew a blood sample from him and analyzed it. The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. Oedipus Essay. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of .15 to .16.

Discussion. Rights. 1. Peremptory challenge. Jury selection proceeded over two days. On the first day, the judge called juror to oedipus vs hamlet essay, side bar for further questions. The juror told the nra civil rights essay judge that she was diabetic.

The judge assured her that the tsi writing essay disease would not be a problem. The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. Essay. The judge seated her conditionally in the jury box in advance of the parties’ challenges. The next day, the oedipus Commonwealth invoked one of its peremptory challenges to exclude juror.

The judge noted that juror nineteen was the only African-American in the jury pool from either day. She asked the Commonwealth to explain the challenge. In response, the nra civil rights prosecutor gave two reasons: (1) the juror’s speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and (2) the prosecutor’s discomfort caused by the juror’s fixed stare at him during empanelment.5 The judge then determined that the prosecutor’s explanation was not race-based. [75 Mass. Tsi Writing. App. Ct. 647] Defense counsel asked for the judge’s impression of juror nineteen. The judge stated that the juror had “somewhat of a halting speech pattern” and was “not incredibly articulate but … not inarticulate either.” The judge did not, however, “associate [the juror's speech] with slowness mentally.” The prosecutor explained that he believed that juror nineteen’s mental acuity was similar to that of another juror whom the nra civil judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth’s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the jury had entered the court room, the judge commented further on the Commonwealth’s peremptory challenge of juror nineteen.

She stated that, after the previous day’s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and that she “wanted to put some more … findings on the record.” She recounted that she had requested an explanation for the peremptory challenge, and she repeated the prosecutor’s explanation. She noted also that the applicable case law requires “a two prong analysis. One having to do with the adequacy of the Commonwealth’s position once having been questioned about the reason for the challenge and then the genuineness of that.” Although the prosecutor had not mentioned the criminal. [75 Mass. Book Essay. App. Ct. 648] history of juror nineteen’s son when he had offered his explanation for nra civil contest the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the narrative order statement that “I find … the Commonwealth’s explanation both adequate and genuine, which is why I allowed the nra civil rights essay contest challenges to stand.” Article 12 of the Declaration of Rights of the american new mandarins historical and political Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race. See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). “[W]e begin with the presumption that a peremptory challenge is proper.” Commonwealth v. Smith, 450 Mass.

395, 406, 879 N.E.2d 87, cert. Nra Civil Rights Essay. denied, ___ U.S. Narrative Essay Chronological. ___, 129 S.Ct. 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof “that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.” Commonwealth v. Soares, 377 Mass. Rights. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Tsi Writing Essay. Either the party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the challenge. Nra Civil Contest. See Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). When “the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of narrative essay chronological order discrimination has been made.” Id. at rights, 463 n. 5, 788 N.E.2d 968. Once the prima facie case of oedipus vs hamlet discrimination has been made, the proponent of the peremptory challenge must provide an explanation which “pertain[s] to the individual qualities of the prospective juror and not to essay, that juror’s group association.” Commonwealth v. Soares, supra at 491, 387 N.E.2d 499.

If the letter proponent’s. [75 Mass. App. Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. Nra Civil Rights. See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). Oedipus Essay. The judge must then “make an independent evaluation of the [proponent's] reasons and … determine specifically whether the explanation was bona fide or a pretext.” Ibid. “In other words, the judge must decide whether the nra civil rights essay explanation is both `adequate’ and `genuine.’” Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). “[I]t is imperative that the record explicitly contain the judge’s separate findings as to pleasure book reading, both adequacy and genuineness and, if necessary, an explanation of those findings.” Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass.

212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the question of the propriety of the peremptory challenge. She appropriately requested an explanation from the nra civil rights contest prosecutor (the proponent of the challenge) and allowed defense counsel to respond. Oedipus. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be “slow” and because she had stared at contest, him in a discomforting manner. The judge received defense counsel’s opposing response. She then stated that, although the juror had “a halting speech pattern,” she did not find the juror mentally slow.

However, the judge concluded that the prosecutor had not misused the essay challenge and allowed it. It was not until the next day that the nra civil contest judge explicitly found the prosecutor’s explanation to be adequate and genuine. The judge’s own language demonstrates that she recognized generally the bcg cover two-part standard of adequacy and genuineness. However, her ruling falls short of the nra civil rights essay contest firm and timely explanation for allowance required by case the line of cases culminating in Commonwealth v. Rights. Benoit, supra. Oedipus Essay. As in Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor’s explanation of the peremptory challenge. See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor’s peremptory challenge where judge. [75 Mass. App. Ct. Essay Contest. 650] requested explanation and then allowed challenge but “did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the essay genuine reason for rights essay contest the challenge”); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant’s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for peremptory challenge).

In sum, the order record contains references to nra civil rights, three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of bcg cover letter her son as a defendant prosecuted by the same district attorney’s office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. She introduced, a day later, the experience of the rights essay son, a potentially serious ground but one never invoked by tsi writing the prosecutor in support of the rights essay contest suspect peremptory challenge.11 In these circumstances, we simply do not have the pleasure book essay specific, clear findings upon adequacy and essay contest, genuineness required by the cases to american new mandarins and political essays, sustain the peremptory challenge. In particular, the judge did not find either of the prosecution’s grounds adequate, i.e., “personal to the juror and not based on nra civil contest the juror’s group affiliation” and “related to the particular case being tried,” however genuine or bona fide the offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is demanding. The precedents require reversal of the convictions. 2. Power New Mandarins Historical And Political. Evidence of blood alcohol content.

The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of operation under the influence, the per nra civil rights essay, se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory.

At the case houses beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant. She made no reference to nra civil essay, alternate theories of operation under the influence. During the trial, the Commonwealth introduced evidence of the defendant’s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and tsi writing, impaired operation. During the rights essay charge conference, the Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to case houses, give an instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in nra civil rights essay, relevant part, as follows: “The law says that if the percentage of alcohol by weight in the defendant’s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at the time.” For reasons discussed below, the instruction was erroneous.

The defendant did not object to the blood test evidence, the prosecutor’s reference to it in letter, his summation, or the judge’s erroneous instruction. In 2003, the Legislature amended both G.L. c. Rights Essay Contest. 90, § 24G, the american power and the and political essays motor vehicle homicide statute, and G.L. Rights Essay. c. American And The Historical And Political Essays. 90, § 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of intoxication. St.2003, c. 28, §§ 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the rights essay defendant had “a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater.” G.L. c. American New Mandarins And Political Essays. 90, § 24G(a). Prior to the amendments, the statutes allowed the nra civil rights essay permissible inference of intoxication when the defendant had a blood alcohol content of .08 percent or greater. Commonwealth v. Book Essay. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference.

See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Nra Civil Rights Essay Contest. Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Essay. Ct. 652] absence of expert testimony to explain their significance.

Id. at 817-818, 864 N.E.2d 498. Rights. The decision states: “If … the Commonwealth were to letter, proceed only on a theory of impaired operation [instead of both a per rights, se theory and an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to guess at its meaning.” Ibid. As for trials where the book reading Commonwealth relies on both theories, the decision states further: “[I]f the per se and impaired ability theories of rights essay criminal liability are charged in the alternative … and so tried, we see no prejudice in the admission of bcg cover letter breathalyzer test results without expert testimony establishing the significance of the test level to the degree of intoxication or impairment of the defendant. In such a case, the jury presumably would be instructed that if they find the contest defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor.”

Id. at 817, 864 N.E.2d 498. We presume that this language applies to the results of blood tests in addition to the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on oedipus an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant’s objection, admission of the results required reversal. Nra Civil Contest. Id. at oedipus essay, 664, 885 N.E.2d 164. In this case, the complaint charged both theories.

The judge admitted evidence of the defendant’s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the contest jury on the per essay, se theory. Furthermore, the judge erroneously instructed the rights contest jury on essay the permissible inference of nra civil rights essay intoxication eliminated by the 2003 amendments. See. [75 Mass. App. Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the letter requisite expert testimony require reversal. Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice.

Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of guilt. Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002);

Commonwealth v. Rights Essay Contest. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the letter Commonwealth’s evidence of intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and nra civil rights essay contest, hit the victim’s vehicle. American Power And The New Mandarins Historical And Political. A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of contest intoxication. The accident reconstruction expert testified that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection.

The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of bcg cover letter alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in the evening. However, the rights contest laboratory supervisor’s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the tsi writing essay most compelling evidence of intoxication. Without it, the Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in nra civil essay, Hubert, police testimony about the chronological defendant’s signs of intoxication differed. Rights Contest. Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of tsi writing essay justice. See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at 13, 712 N.E.2d 575. [75 Mass. Nra Civil Rights Contest. App. American Historical And Political Essays. Ct. 654]

Conclusion.14,15 For the foregoing reasons we reverse the judgments and set aside the verdicts. Nra Civil Rights Essay. The case is remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G.L. Book Reading Essay. c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by essay operation under the oedipus vs hamlet essay influence and by negligent operation (in violation of G.L. c. 90, § 24G[a]), the nra civil contest Commonwealth nol prossed the motor vehicle homicide charge from the first complaint. 2. Under G.L. c. 90, § 24G(a), the Commonwealth may use either of two theories to prove operation under the influence: (1) operation “with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the oedipus influence of intoxicating liquor.” G.L. Essay Contest. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21.

See Commonwealth v. Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Houses. Hubert, 71 Mass.App.Ct. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. 1009, 902 N.E.2d 368 (2009). Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory. 3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth’s motion to file a late notice of appeal from the grant of the defendant’s motion for relief from an unlawful sentence.

The Commonwealth’s appeal has not entered in this court. In its brief, the Commonwealth does not argue the propriety of the rights essay contest grant of the motion. Therefore, we do not address it. 4. She opined also that the defendant’s jeep had struck a vehicle parked on the side of the road prior to the collision with the victim’s vehicle. 5. In its entirety, the prosecutor’s explanation was: “Judge, she appears slow to me at side-bar in her speech and tsi writing essay, mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at me, staring me down while we were at the side-bar; and it bothered me. But I do find that she’s slow at essay contest, side-bar speaking with her, in her speech; and I’m concerned that this is a three or four day trial, a lot of witnesses; and vs hamlet essay, I’m concerned about her ability to try the evidence.” 6. Contest. The judge observed that the studies defendant had adequately preserved the issue for appeal. During the discussion of the essay contest challenge, the power and the historical essays judge asked the nra civil contest prosecutor why he had used another peremptory challenge on oedipus essay juror fourteen. Nra Civil Rights Contest. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of pleasure book reading essay a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge.

7. The parties assert that the judge stated that she had read Commonwealth v. Nra Civil Essay. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the power and the and political judge stated that she “look[ed] over the case law, particularly Commonwealth v. Contest. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of studies houses a [discrete] group….” The reference (jumbled in transcription) most probably was the Maldonado decision. 8. The judge’s reference to the criminal history of juror nineteen’s son was as follows: “I would also add that it was known to all of nra civil essay us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney’s office and apparently came up…. [A]nd I don’t remember the essay case per se but she spoke about contest it. Case. It apparently just happened last fall.”

The judge went on to say that she understood the Commonwealth’s concern “whether she could perform in a truly objective manner” because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by the prosecutor. 9. As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the nra civil rights contest judge referred to the experience of juror nineteen’s son in the New Bedford District Court. See note 8, supra. Studies. The prosecutor did not refer to rights, the criminal history of the juror’s son as justification for letter his peremptory challenge.

A judge may not supply her own reasons to nra civil rights contest, justify a prosecutor’s peremptory challenge. See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct.

636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of success. “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s `gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.” Commonwealth v. Maldonado, 439 Mass. at 465, 788 N.E.2d 968. 11. American Power And The. This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of either the Commonwealth or a defendant. 12. Rights Essay. The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and case houses, this court the Hubert decision in May 2008. Nra Civil Essay. Therefore the vs hamlet essay judge and trial counsel did not have the nra civil essay contest benefit of those interpretations of the 2003 amendments. 13. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and american power historical and political essays, preserved the issue so that the standard of review was the presence of prejudicial error.

Here we have reviewed the issue under the less demanding standard of nra civil essay contest substantial risk and found the vs hamlet error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the victim’s mother at the defendant as the jurors left the courtroom on the first day of contest trial, and (2) the presence of bcg cover a makeshift memorial to the victim at the accident scene during the jury’s view of the site. The claim of calculated impropriety by the prosecutor arises from testimony of nra civil rights essay two police officers that they told the case defendant that he had “killed” the victim. The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the judge’s decision on a motion in rights, limine.

No evidence supports the view that the mother’s outburst or the accident site memorial overcame the judge’s instructions for a verdict based strictly on the evidence. The claim related to essay, the officers’ use of the rights essay contest word “killed” fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the tsi writing right to confrontation guaranteed by the Sixth Amendment to nra civil essay, the United States Constitution by reason of the admission of the blood alcohol test result. The rule of Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct.

2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal. Massachusetts OUI Case – Defendnat admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for essay an operating under the influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED. Andrew S. Robinson, Asst.

Dist. Atty. Nra Civil Contest. (orally), Franklin County DA’s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Reading Essay. Gilman. Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the court imposed on Gerald W. Rights Contest. Gilman following his conviction at a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. Essay Chronological Order. P. 35(a). The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of nra civil rights essay imprisonment required by the statute. The court did so after finding that the power new mandarins and political statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that “all penalties and punishments shall be proportioned to the offense.” Me.

Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the nra civil essay mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the. court erred in admitting a certified record from the Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against american power and political, him as articulated in Crawford v. Nra Civil. Washington, 541 U.S. Essay. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State’s appeal is nra civil rights essay, accompanied by vs hamlet the written approval of the rights Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. Power And The. P. Nra Civil. 21(b). Because we agree with the State’s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and pleasure reading, remand for nra civil contest resentencing. ? 4 The facts are not in dispute. On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. He had not been drinking.

Gilman, a member of the local Elks Club, was returning from the club’s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman’s license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the Secretary of State, admitted at trial over Gilman’s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for book essay operating after revocation (Class C). The charge was enhanced because of nra civil rights essay contest his three OUI convictions within the previous ten years.

29-A M.R.S. Case Studies Houses. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as “Tina’s Law,” provides that in that circumstance “the minimum fine . . . is $1,000 and rights essay contest, the minimum term of imprisonment is 2 years, neither of which may be suspended by the court.” 29-A M.R.S. Tsi Writing. ? 2557-A(2)(D); P.L. Nra Civil Rights. 2005, ch. American Power Historical And Political. 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to dismiss the allegation of the essay aggravating factor of tsi writing essay his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the nra civil essay charge to a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the narrative essay influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for nra civil essay contest OUI. The Superior Court (Jabar, J.) denied the motion. ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the tsi writing Confrontation Clause would be violated by rights contest the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman’s motion for a judgment of acquittal, and took the ultimate issue of chronological whether the State had met its burden of proof under advisement.

Gilman then filed a written. argument asking the rights essay court to studies, revisit its earlier rejection of his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the court’s reasoning on the Confrontation Clause issue and again denied Gilman’s equal protection claim.

On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the essay contest court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that “Tina’s Law” increased the penalties if he were to be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman’s due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the case United States Department of Veterans Affairs, Gilman’s sister, and Gilman himself. Nra Civil Essay. At the reading conclusion of the hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Gilman, as well as the manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Gilman.

? 11 At a final hearing on December 11, the court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of contest probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009). Bcg Cover. The State orally moved the court to correct what it viewed as an illegal sentence pursuant to M.R.Crim. P. 35(a);4 the motion was denied orally and later in a written order. This appeal and essay, cross-appeal followed. A. Scope of Article I, Section 9. ? 12 Article I of the bcg cover letter Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on the State’s power to punish: “Sanguinary laws shall not be passed; all penalties and rights essay, punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” Me. Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at least two years.

29-A M.R.S. ? 2557-A(2)(D). Accordingly, the court’s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to chronological order, the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilman’s individual circumstances, the rights essay mandatory sentence was disproportionate to tsi writing, his offense, and therefore the statute is unconstitutional in this instance.5 Gilman’s burden is rights contest, significant, as “one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. Order. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). Essay. We review de novo whether he met that burden through a showing of “strong and convincing reasons.” Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the studies Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the individual or because of the manner in which the sentence is carried out, there was not enough information in this case for the trial court to nra civil rights, reach that conclusion. State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for pleasure book reading which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by nra civil essay contest the trial court was therefore illegal and. must be vacated. Case. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to rights contest, be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is not possible.

? 16 The plain language of section 9 requires that “punishments shall be proportioned to the offense.” Me. Const. art. I, ? 9 (emphasis added). It says nothing about the bcg cover individual offender. This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used.

Because the same principles employed in the construction of statutory language hold true in the construction of a constitutional provision, we apply the plain language of the constitutional provision if the language is unambiguous. Voorhees v. Nra Civil Essay Contest. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of oedipus vs hamlet essay section 9 is unambiguous, and therefore we give it its plain meaning. See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that “it is nra civil rights, a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings” (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction.

In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and tsi writing essay, unusual under section 9, we have rejected the challenge after considering the rights essay contest defendant’s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to point out tsi writing, that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in nra civil essay, its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not. required an power and the and political, individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Nra Civil Rights. Michigan, 501 U.S. 957, 996, 111 S.Ct. American Power Historical. 2680, 115 L.Ed.2d 836 (1991) (“We have drawn the rights essay contest line of required individualized sentencing at capital cases, and see no basis for extending it further.”). Regarding the Federal Constitution, the First Circuit Court of Appeals noted:

There is no constitutional right, in american power new mandarins essays, non-capital cases, to individualized sentencing. Legislatures are free to contest, provide for mandatory sentences for particular offenses.. . . The mere fact that a sentence is mandatory and severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is reading, further supported by nra civil contest our cases holding that the Legislature has the power to enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in tsi writing essay, those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is appropriate to do so, subject only to nra civil rights contest, the constitutional prohibition against narrative chronological, punishment disproportionate to a given offense. The construction urged by Gilman would go far beyond what the language of section 9 requires and nra civil rights contest, effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature’s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant’s individual circumstances in finding that a mandatory sentence is disproportionate as applied to tsi writing, that person is simply reinstatement by rights judicial declaration of a sentencing court’s ordinary discretion to weigh mitigating factors, and vs hamlet essay, then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. Contest. ? 1252-C(2). A court would then always have the oedipus vs hamlet essay sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on the ground that the nra civil mandatory sentence is disproportionate as applied in essay, a particular case. We do not read article I, section 9 to render the rights essay Legislature’s authority to enact mandatory sentences a nullity.10.

? 21 Because we hold that the clause, “all penalties and punishments shall be proportioned to the offense,” means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court “always has the power and duty to uphold the State and Federal Constitutions,” and will “protect the individual from an unconstitutional invasion of his rights by the legislative . . . branch of government.” Dep’t of Corr. Tsi Writing. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as “the voice of the sovereign people” in the area of crime and punishment: The fixing of an rights contest, adequate criminal penalty is case houses, properly and legitimately a matter of legislative concern. It is not the rights office of the judiciary to power essays, interpose constitutional limitations where none need be found.

Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to rights essay, be avoided might then be a cruelty of constitutional dimensions. It seems to us that the interest of the legislature is oedipus vs hamlet essay, paramount in the field of penology and the public safety. The legislature defines the contours of the crime itself, and sets the limits for punishment. Nra Civil. . . . The underlying structure of the penal system is statutory; the coherence of the system is to be found in legislative direction. State v. King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (“The power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to book reading essay, define a crime and ordain its punishment.” (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and nra civil, unusual as whether it “is greatly disproportionate. Tsi Writing. . . and whether it offends prevailing notions of decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it “shocks the conscience of the public, or our own respective or collective sense of fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is “inhuman or barbarous,” State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is essay contest, “the voice of the sovereign people,” King, 330 A.2d at 127, and thus expresses the people’s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the collective conscience of the people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of houses government assumes that the nra civil rights essay contest judgment of the Legislature is the collective judgment of the people.

? 24 Gilman was convicted of a Class C crime, punishable by reading essay a maximum of five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). Rights Contest. The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum. 29-A M.R.S. ? 2557-A(2XD). Houses. It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to drive under any circumstances. A mandated sentence for that conduct on the lower end of the zero-to-five-years scale is not the rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. C. Nra Civil. Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for tsi writing essay speeding, the Legislature had no rational basis for increasing his sentence for operating after revocation because of his prior OUI convictions.

He acknowledges that in order to reach the result he seeks, we would be required to essay, overrule our decision in State v. Chapin, where the same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was “certainly strong enough” to justify the imposition of a minimum mandatory sentence for oedipus vs hamlet habitual offenders with OUI convictions who continue to drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the nra civil rational relationship of prior OUI convictions to an enhanced sentence for operating after revocation remains intact.

? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the tsi writing essay minimum statutory penalties for operating after revocationM had increased with the enactment of 29-A M.R.S. ? 2557-A. See P.L. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 28 In Stade, we held that a defendant’s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. 683 A.2d at essay, 166. Here the vs hamlet State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and Gilman is presumed to know what the contest law is. Power And The New Mandarins Historical And Political. See Houghton v. Hughes, 108 Me. Nra Civil Rights Essay. 233, 236-37, 79 A. 909 (1911).

Contrary to Gilman’s argument, due process did not require that he be individually notified of the power and the essays change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12. E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the nra civil rights Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to pleasure book reading, operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the rights contest preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because “the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.” 2008 ME 177, ? 24, 960 A.2d at pleasure book reading, 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman).

? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the admission of a chemist’s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although “documents kept in nra civil rights essay, the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . that is not the case if the regularly conducted business activity is the production of evidence for use at trial.” Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on pleasure book Tayman and concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman’s argument fails.

Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided: D. A person is guilty of a Class C crime if the person commits the nra civil rights contest crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. The minimum fine for a Class C crime under this paragraph is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in tsi writing, any way that affects this case. P.L.

2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in rights, the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases). 3 The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)).

4 The Rule provides: “On motion of the . . . attorney for the state . . . made within one year after a sentence is imposed, the houses justice or judge who imposed sentence may correct an nra civil essay contest, illegal sentence or a sentence imposed in an illegal manner.” M.R.Crim. P. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for tsi writing essay other crimes. Nra Civil Contest. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the and the new mandarins essays protections against disproportionate punishments and nra civil essay, cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct.

2641, 171 L.Ed.2d 525, 538 (2008) (“The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . The Eighth Amendment’s protection . . . flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to case, the offense.” (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (“In analyzing whether a sentence is contest, cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to the offense and whether it offends prevailing notions of decency.”); State v. Studies. Frye, 390 A.2d 520, 521 (Me. 1978) (“A mandatory sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency”); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (“The interpretation of rights `cruel or unusual punishment’ also is informed by the requirement of proportionality.”). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at essay order, 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and rights contest, unusual); State v. Chronological Order. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for OUI with blood-alcohol level of 0.15% or more not disproportionate to nra civil essay, the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for letter armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of contest lobsters in particular case irrelevant); c.f. Reading Essay. State v. Alexander, 257 A.2d 778, 783 (Me.

1969) (holding five-day sentence imposed by court in its discretion for nra civil essay contemptuous “reprehensible conduct” not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of a child violates Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding death penalty for juveniles under age eighteen violates Eighth Amendment); Ewing v. Power And The Historical. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for stealing three golf clubs under “three strikes” law not grossly disproportionate and essay contest, therefore not cruel and unusual); Atkins v. Virginia, 536 U.S.

304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for narrative chronological mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and rights, finally determines whether any of the maximum sentence should be suspended in arriving at a final sentence.

17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Governor the equitable power to “grant reprieves, commutations and pardons” in tsi writing, individual cases. Nra Civil Contest. Me. Const. art. V, pt.

1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the Supreme Court used the hypothetical example of “a legislature making overtime parking a felony punishable by life imprisonment.” Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. ? 2557 was repealed and tsi writing essay, replaced by P.L. 2005, ch. Rights. 606, ?? A-10, A-11 (effective Aug. Tsi Writing. 23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on contest October 14, 2005.

Gautier’s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant. Criminal No.

06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED.

Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender’s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Weinreb, United States Attorney’s Office, John A. Wortmann, Jr., United States Attorney’s Office, Boston, MA, for bcg cover United States of America. GERTNER, District Judge: TABLE OF CONTENTS. A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Nra Civil Rights Essay Contest. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. 2. Whether the Crime Defined by narrative Prong (2) of § 32B Is a Violent. B. Whether the 1998 Juvenile Offenses Were Committed on Different. 2. Whether the nra civil rights essay contest Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of defendant Eddie Gautier (“Gautier”) one night in Roxbury.

The offense stemmed from a night of pleasure reading essay drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by nra civil essay state officers, possession of an inoperable gun did not constitute a crime under state law. The federal government took up the case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from tsi writing 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. Rights Contest. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for houses Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). See § 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions). Essay Contest. I disagree.

In passing the case studies houses ACCA, “Congress focused its efforts on career offenders— those who commit a large number of nra civil essay contest fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to letter, persons.” Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. Nra Civil Rights Contest. 2143, 109 L.Ed.2d 607 (1990). Gautier’s criminal history consists of six episodes over american power and the and political essays ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for the ACCA enhancement are the two serious juvenile offenses, and resisting.

After two rounds of briefing and nra civil essay, two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the pleasure book essay statute. First, his resisting arrest conviction does not constitute a “violent felony” within the meaning of the ACCA. Second, and in the alternative, court records were ambiguous on rights contest the question of whether his 1998 offenses were “committed on occasions different from one another” as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. Accordingly, I sentenced Gautier to narrative essay chronological order, 57 months’ incarceration, in effect the Guideline felon in possession sentence, and nra civil essay, three years’ supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for that sentence. On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group. One of Gautier’s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband.

The officers exited the car, badges displayed, and walked to essay chronological order, Cabrera. Cabrera then allegedly shouted “get the burner” (slang for gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on nra civil contest the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier’s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and indicted on February 15, 2006, on one count of oedipus vs hamlet essay felon in possession of a firearm and one count of felon in possession of ammunition, both pursuant to 18 U.S.C. § 922(g)(1). Subsequent to his arrest, he agreed to speak to federal agents and police investigators, admitted to possessing the nra civil rights essay contest gun, and divulged where it had come from. Indeed, according to his counsel, the defendant repeatedly offered to oedipus vs hamlet essay, plead guilty to the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for Gautier sought a pre-plea Pre Sentence Report (“PSR”). When the pre-plea PSR concluded that an ACCA enhancement was required, the contest defendant felt obliged to go to trial. At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction. His defense was that he had picked up the gun and held it momentarily, to keep it from order a group of younger, intoxicated friends in a dangerous area of Boston.

The jury rejected his claim, convicting him of nra civil rights essay both counts on letter July 18, 2008. He has been incarcerated since his arrest on nra civil essay contest January 6, 2006. At the american historical essays first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in rights essay contest, the defendant’s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in bcg cover, 1998 were clearly separate predicates. At the nra civil rights essay contest final sentencing hearing on December 15, 2008, after reviewing the parties’ submissions, I concluded that the ACCA enhancement was not warranted, principally because of the case studies houses resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well.

Gautier’s conviction for rights essay being a felon in bcg cover letter, possession of a firearm pursuant to 18 U.S.C. Nra Civil Essay. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. Narrative Essay Chronological. That statute provides: In the case of a person who violates section 922(g) of this title and nra civil rights contest, has three previous convictions by book any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years…. 18 U.S.C. § 924(e)(1). Gautier’s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier’s conviction for nra civil essay resisting arrest may not be a “violent felony” under the ACCA. Case. Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the 1998 offenses were “committed on essay occasions different from one another.” A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass.

Gen. Studies. Laws Ch. 268, § 32B Is a Violent Felony. The ACCA defines “violent felony” as any crime punishable for a term exceeding one year that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of nra civil rights explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and chronological, not to the facts underlying the conviction. Nra Civil. See Taylor, 495 U.S. at 600, 602, 110 S.Ct. American Power And The Essays. 2143.

Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against essay contest, engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge “may not hold a minitrial on case studies houses the particular facts underlying the prior offense,” see United States v. Rights. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may “peek beneath the coverlet” of the formal language to case houses, ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in Shepard v. Nra Civil Rights Contest. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is american power, how far that “peek” can go. “Not very far, is the answer.” United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at 142-46.) If the nra civil essay contest defendant was convicted after a trial, the tsi writing essay court is nra civil rights essay contest, permitted to consider what the essay jury instructions suggested about the verdict. Nra Civil. When a defendant’s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at sentencing, and any comparable judicial record.

See Shepard, 544 U.S. at oedipus vs hamlet, 26, 125 S.Ct. 1254. Nra Civil. Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by the defendant. See Dueno, 171 F.3d at 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of Gautier’s 2002 plea to bcg cover, the charge establishes that the plea was to the violent version of the felony. Under the Massachusetts statute, a person is guilty of the offense if he knowingly prevents or attempts to prevent an officer from effecting an arrest by “(1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” Mass. Rights Essay. Gen. Laws ch.

268, § 32B(a). Reading. The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it “has as an element the nra civil contest use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. Case Studies. § 924(e)(2)(B)(i); see Gov’t Sent. Mem. 3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier’s colloquy, no plea agreement, and no other record indicating which type of resisting arrest Gautier admitted. While the PSR reviewed the police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to any “peek” at the underlying facts not comprised by the plea colloquy. Accordingly, as in rights essay contest, Shepard, the pleasure criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the offense and provides its full statutory definition.5 As there is nra civil rights essay contest, no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and as the. statute is structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the book reading essay ACCA.

It cannot. 1. Whether the Crime Defined by Prong (2) of nra civil rights § 32B Is a Violent Felony Under 18 U.S.C. Reading. § 924(e)(2)(B)(i) By its own terms, the nra civil rights Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the language “using any other means which creates a substantial risk of american and the new mandarins and political essays causing bodily injury to such police officer or another,” Mass Gen. Nra Civil Rights Contest. Laws. Chronological. ch. 268, § 32B(a), does not explicitly “ha[ve] as an element the use, attempted use, or threatened use of rights essay physical force against the person of another,” 18 U.S.C. Bcg Cover Letter. § 924(e)(2)(B)(i). Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an essay, element, coupled with Prong (2)’s specification of resistance by “other means,” suggests that Prong (2) does not involve such an studies, element by implication, either. 2. Whether the Crime Defined by nra civil essay contest Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii)

If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the second definition provided by the ACCA. Since resisting arrest is tsi writing, obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the use of explosives—the inquiry focuses on what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S. 192, 127 S.Ct. Rights. 1586, 1591, 167 L.Ed.2d 532 (2007). Vs Hamlet. The issue is whether resisting arrest “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” in the language of the Massachusetts statute, Mass. Gen. Laws. ch. 268, § 32B, “involves conduct that presents a serious potential risk of essay physical injury to another,” in the language of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the residual clause.

In Begay v. United States, ___ U.S. Bcg Cover Letter. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is rights contest, a “violent felony” under the residual provision of § 924(e)(2)(B)(ii). Where the offense in question is not one of those enumerated in the statute, a court must determine not only studies houses (1) whether that offense “involves conduct that presents a serious risk of essay contest physical injury to another,” but also (2) whether the crime is “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses. Narrative Essay. Id. at 1585. The latter step is nra civil contest, critical here. It requires a court to american power new mandarins and political, decide whether the offense in question typically involves “purposeful, violent, and aggressive behavior”—the defining feature of the rights essay enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to text, the court noted that the presence of the enumerated offenses of burglary, arson, extortion and crimes involving explosives “indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.’” Id. Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the examples. As to history, the Court noted that in 1986 “Congress rejected a broad proposal that would have covered every [such] offense.” Id. at 1586.

Finally, the pleasure book essay Court noted that this interpretation served the ACCA’s purpose of “punish[ing] only a particular subset of offender, namely career criminals.” Id. at nra civil, 1588: The listed crimes all typically involve purposeful, “violent,” and “aggressive” conduct…. That conduct is american power and the new mandarins essays, such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim…. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels “armed career criminals.” Id. at 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to another.” Id. at 1584. Even so, it held under the second step of the analysis that a conviction for driving under the influence (“DUI”) falls outside the scope of the residual clause because “[i]t is simply too unlike the provision’s listed examples for us to nra civil, believe that Congress intended the provision to cover it.” Id. at 1584. Moreover, the pleasure book Supreme Court has held that in conducting this analysis, courts need not analyze “every conceivable factual offense covered by a statute,” but rather should consider “the ordinary case” of the offense. James, 127 S.Ct. at 1597. In the words of the First Circuit, I must evaluate the degree of risk posed by rights “the mine-run of conduct that falls within the heartland of the statute.” United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Pleasure Book. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of a firearm is not a violent felony under the ACCA because risk of physical harm does not “often accompany[] the conduct that normally constitutes” the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court’s understanding that it had to consider “what’s the typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence “if and only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant’ of the predicate offense”); Winter, 22 F.3d at essay contest, 20 (“A categorical approach is not concerned with testing either the outer limits of tsi writing essay statutory language or the myriad of possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of conduct that the statute purports to proscribe.”). To determine the mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in essay, the Massachusetts state courts.

There have been relatively few cases interpreting that part of the statute. In Commonwealth v. Oedipus Vs Hamlet Essay. Grandison, 433 Mass. Contest. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant’s stiffening his arms and pulling one away for a second to avoid being handcuffed constituted resisting arrest by pleasure book essay a “means which creates a substantial risk of nra civil contest causing bodily injury” to the officers involved. Id. at 144-45, 741 N.E.2d 25. In Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and oedipus essay, refused to put his hands behind his back.6 Id. at contest, 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Commonwealth v. Grant, 71 Mass.

App.Ct. 205, 210 n. 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the power new mandarins resisting arrest statute covers the actual or threatened use of force, the rights mine-run of conduct criminalized by Prong (2) involves a lesser version of “active, physical refusal to submit to the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to resist handcuffing. Maylott, 65 Mass.App. Pleasure Book Reading Essay. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the Prong (2) definition of resisting arrest “presents a serious potential risk of physical injury to nra civil rights essay, another.” Stiffening one’s arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of pleasure book injury, and at least one court has suggested this inconsistency as a ground for nra civil rights finding that a criminal offense fails to narrative essay, satisfy this part of the test. See United States v. Urbano, No.

07-10160-01-MLB, 2008 WL 1995074, at nra civil rights essay, *2 (D.Kan. May 6, 2008) (holding on case studies these grounds that fleeing or attempting to elude a police officer in nra civil essay contest, a motor vehicle is not a “violent felony” for ACCA purposes) (“While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the letter statute also charges behavior which would arguably not cause serious personal injury.”). Nra Civil Contest. In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is “[t]he type of resistance [that] could have caused one of the officers to american and the, be struck or otherwise injured, especially at the moment [the defendant] freed his arm.” 433 Mass. at 145, 741 N.E.2d 25. Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to nra civil essay, another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses. Begay, 128 S.Ct. at 1585. First, looking to the degree of tsi writing essay risk: Even if the Grandison court is correct that stiffening one’s arms and pulling away present a serious risk of harm to another, the degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of violence due to “the possibility of a face-to-face confrontation between the burglar and a third party … who comes to investigate.” James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the essay “powder keg” rationale). Case Studies Houses. The element of nra civil rights essay contest surprise that spooks a burglar into personal violence is oedipus, not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of one’s arms than that it will result from a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of nra civil essay contest explosive devices.9.

Second, looking to the “in kind” test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to determine whether the tsi writing offense involves “purposeful, violent, and aggressive behavior.” In Begay, the Court held that drunk driving does not fulfill the rights contest test because the offender does not possess the narrative essay purpose or intentional aggression that characterizes the enumerated offenses. 128 S.Ct. at essay, 1586-87 (“[S]tatutes that forbid driving under the influence … criminaliz[e] conduct in respect to which the offender need not have had any criminal intent at all.”); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of violence because it is not intentional). Essay. But as the First Circuit recognized in United States v. Rights Essay Contest. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall “neither within the safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI …), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.” Id. at tsi writing essay, 7 (citation omitted). Prong (2) resistance is nra civil rights, such a crime. The First Circuit recently explained that “all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to qualify as a `violent felony’ under ACCA.” United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics. It explained: The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “tending toward or exhibiting aggression,” which in power and the historical, turn is defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. Contest. 2003).

Violence may be defined as “marked by extreme force or sudden intense activity.” Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for letter homicide by negligent operation of a motor vehicle was not a “crime of essay contest violence” under the career offender sentencing guidelines.10 Id. at 59. While the case studies houses offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to be similar “in kind” to the enumerated offenses. Id. A similar conclusion obtains here.

To be sure, the rights Prong (2) form of resisting arrest is purposeful in that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to expose others to risk of injury). It is differently purposeful, however, from the book reading essay interstate transport of a minor for prostitution, which the First Circuit held in Williams constituted a “crime of violence” under the career offender provision of the rights contest sentencing guidelines. 529 F.3d at case studies houses, 7-8. A defendant who prostitutes minors “is aware of the risks that the prostituted minor will face” and the risk of harm is “easily foreseen by the defendant,” id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Essay Contest. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses. See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary “one of the `most damaging crimes to society’ because it involves ‘invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and valued possessions’” (quoting H.R.Rep. No.

98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by bcg cover the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by the court’s definition of violence. See Herrick, 545 F.3d at 60. Nor does it resemble those offenses previously held by the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of nra civil rights contest violence under the residual clause. See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on tsi writing essay a police officer); United States v. Nra Civil Rights Essay Contest. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. Chronological. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Rights Essay Contest. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on oedipus vs hamlet a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. Contest. United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and entering a commercial building); United States v. Order. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old).

And those cases predated Begay, when the standard for finding an offense to be a “violent felony” was easier to satisfy. In light of the difference in aggression and violence between resisting arrest and the offenses previously held to nra civil rights, be ACCA predicates, Prong (2) resistance does not resemble the tsi writing enumerated offenses in the “`way or manner’ in which it produces” risk of injury. Begay, 128 S.Ct. at 1586. To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of these cases predate Begay.11 Begay. “charted a new course in interpreting the critical violent felony definition of the nra civil rights essay Armed Career Criminal Act.” Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government’s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a “crime of violence” under the career offender guidelines. United States v. Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. 24, 2008) (sentencing defendant without written opinion to letter, twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)). In another post-Begay case on resisting arrest, the rights essay contest U.S.

District Court for the District of Kansas held that the crime of fleeing and eluding an officer is not a crime of violence because “the statute also charges behavior which would arguably not cause serious personal injury” and because resisting arrest “is not similar to the listed crimes set forth” in tsi writing essay, § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Contest. Importantly, the district court so held despite the american historical and political essays existence of a 2005 precedent concluding that the resisting arrest was a crime of violence. Essay. The court explained its about-face as required by Begay. Id. at *2. In light of the Supreme Court’s pronouncement in Begay, then, I find that the Prong (2) version of resisting arrest is not a “violent felony” under the ACCA.

The usual conduct underlying a conviction under that definition involves the stiffening of one’s arms, not the application of force to reading, another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest. Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Gautier has at nra civil essay, most two statutory predicates—too few to narrative essay chronological order, trigger the fifteen-year mandatory minimum.

B. Whether the nra civil rights 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier’s resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. In the alternative, I find the power and the new mandarins and political enhancement is also flawed for contest a second reason: his 1998 juvenile offenses were not “committed on occasions different from one another” as required to letter, constitute independent predicate offenses.12 18 U.S.C. § 924(e)(1). The First Circuit has held that “the `occasions’ inquiry requires a case-by-case examination of the totality of the rights contest circumstances.” United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the “identity of the victim; the type of crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the defendant’s conduct; and/or the apparent motive for american historical essays the crimes.” Id. As one would expect from Congress’ use of the word “occasion,” the First Circuit has focused on the element of time. The Stearns court summarized that the statute distinguishes between, on the one hand, “a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,’ viz., a period (however brief) which is devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,” and on the other, “a time lapse which does not mark the endpoint of the nra civil rights contest first crime, but merely the natural consequence of a continuous course of vs hamlet extended criminal conduct.”13 387 F.3d at 108 (defendant who burglarized the nra civil same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No.

CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Case Houses. Dec. 21, 2007) (two robberies committed over five weeks apart against different victims in different locations occurred on different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on different occasions because they were committed on consecutive days); United States v. Mollo, No. Rights Essay. 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at narrative order, 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the essay same victim and defendant was convicted and sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for the purposes of the ACCA, even though defendant received concurrent sentences).

2. Whether the Inquiry Is Limited to Shepard-approved Source Material. Again, in order to apply the book reading above legal standard to the facts of Gautier’s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a “categorical approach” to determining whether a prior conviction qualifies as a “violent felony” and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the case of contest a guilty plea, the Court has limited district courts to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of book reading essay this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The issue I confront here is whether this same source restriction applies to essay, my consideration of whether two offenses were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The First Circuit has never ruled on this issue. In a pre-Shepard case, the court “express[ed] no opinion” on the lower court’s citation of Taylor for case the proposition “that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.” Stearns, 387 F.3d at 107.

In that case, the defendant sought an evidentiary hearing to develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an involved inquiry and nra civil rights essay, denied his motion, but because the defendant accepted the american power new mandarins historical and political judge’s ruling without objection, the First Circuit held he could not raise the issue on essay appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the First Circuit again declined to resolve the issue. The defendant argued it was error for the district court to use facts gleaned from police reports and oedipus vs hamlet, described in the PSR to find that two drug offenses disposed of on the same day were in fact “committed on rights essay contest occasions different from one another.” Id. at 38. The court of essay appeals opted not to address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA. Id. at 40.

At least three circuit courts have held that the source restriction applies to the occasions inquiry. Nra Civil Rights Contest. The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the “ACCA’s use of the term `occasion’ requires recourse only to data normally found in conclusive judicial records, such as the date and location of an offense, upon which Taylor and Shepard say we may rely.” Id. at 286 (upholding trial judge’s reliance on the PSR to pleasure book essay, find that three burglaries occurred on separate occasions where that information was derived from Shepard-approved sources such as indictments and where defendant never objected to the details in the PSR); see also United States v. Williams, 223 Fed.Appx. Essay Contest. 280, 283 (4th Cir. 2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the tsi writing court could not establish on nra civil rights essay the basis of essay Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the sequence of his predicate offenses was not established by nra civil rights contest Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by narrative essay order the ACCA should be vacated and remanded when it is unclear whether the sentencing court limited itself to Shepard sources in determining whether the defendant’s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir.

2005). Several district courts have come to the same conclusion. See, e.g., United States v. Carr, No. Nra Civil Essay Contest. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. 16, 2008) (limiting the occasions inquiry to facts available in Shepard-approved material), including at book, least one court in rights, a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and pleasure, holding that the trial court “properly reviewed the charging documents to determine that the offenses occurred on three separate occasions”). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: “All of nra civil rights contest our opinions on this issue have involved consideration of the pleasure book specific facts underlying the prior convictions.

Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the nra civil predicate offenses.” United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on bcg cover separate occasions, see United States v. Nra Civil Contest. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding “[a]s a practical matter” that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is “unsuited to a categorical approach,” United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the essay Supreme Court reaffirmed its commitment to essay, the categorical approach in vs hamlet, Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the nra civil rights district court’s use of the PSR to determine that defendant had three predicates from different occasions for the ACCA).

I find that the former approach is more faithful to the Supreme Court’s rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA. As I explained in my remand opinion in Shepard, the Supreme Court’s categorical approach “caution[s] the judge against becoming embroiled in pleasure book reading, a `daunting’ factual inquiry about what had actually happened at the time of the state offense.” United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in essay contest, identifying countable predicate offenses where the american power and the essays defendant did not go to rights contest, trial is “what did the defendant plead to in the state court?” Id. at 17. Where a defendant has not been found guilty by tsi writing a jury, it is only fair to punish him for contest the prior conduct that he actually admits, either by pleading to the facts alleged or failing to pleasure book, object to them at sentencing.14. In light of the Supreme Court’s caution in nra civil, this area and the judgment of the reading courts of appeals, I find that I am limited to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” in determining whether the defendants prior offenses were committed “on occasions different from nra civil one another.” Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in deciding whether the 1998 offenses occurred on different occasions are the state court indictments and case, Gautier’s plea tenders. The statutory definitions contain no elements that bear on nra civil rights essay the sequence of the essay offenses.

The government can produce no plea colloquy transcripts from those cases. Nra Civil Rights. And no additional underlying facts were incorporated into the PSR and adopted by narrative essay the defendant. Nra Civil. PSR ¶¶ 35-36 (repeating the pleasure book essay details provided in the indictments and specifically stating that police reports were not received). While the plea tenders merely contain the defendant’s and prosecutor’s dispositional requests, several things are evident from the face of the rights essay contest indictments. In Suffolk Superior Court case no. 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against a victim named “F.L.” In Suffolk Superior Court case no. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on January 8, 1998.

The indictments indicate that on bcg cover letter January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.’s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against nra civil essay contest, different individuals. New Mandarins Essays. But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims. Crucially, specific as they are, the rights charging documents do not reveal the location of the book reading essay crimes, the time interval between the offenses, or the continuity of the conduct. It is therefore not “possible to discern the point at essay contest, which the power and the new mandarins essays first offense is completed and the second offense begins.” United States v. Nra Civil Rights. Martin, 526 F.3d 926, 939 (6th Cir.2008). Houses. Indeed, as far as the indictments are concerned, these attacks could have been simultaneous.

Finally, I consider whether the mere fact that the nra civil essay contest offenses against F.L. and those against chronological order, E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. It is rights essay contest, well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990). As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions. See, e.g., United States v. Alcantara, 43 Fed.Appx. Letter. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed “on or before November 30? did not establish that the offenses occurred on “occasions different from one another” for the purpose of the ACCA); cf.

United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. Rights Essay. 2005) (holding that Shepard’s source restriction governs determinations of whether prior crimes were “related” under the Sentencing Guidelines criminal history provisions, then ruling that the narrative chronological existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to rights essay, the instant case. Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth “may” charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautier’s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced “a period … devoid of criminal activity and in which he may contemplate whether or not to letter, commit the second crime,” Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies “on occasions different from one another.” By the terms of the ACCA itself, the rights contest 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to Gautier.15.

IV. THE SENTENCE. A. Houses. The Guidelines Computation. I accept the essay presentence report computation of the bcg cover letter Guidelines to this extent: the base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under § # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned.

I consider this issue in connection with the nra civil 3553(a) factors (see below). Tsi Writing. While the government argues that the nra civil rights contest defendant committed perjury during his trial testimony, I do not agree and will not enhance under § 3C1.1. I also agree that Gautier’s criminal history is category IV under § 4A1.1(d) and vs hamlet essay, (e). Contest. The Guidelines range, then, is 63-78 months. B. 18 U.S.C. § 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to be imminent harm to others, and because he has turned his life around while in custody.

I can find no clear rationale for a variance on narrative essay these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the purposes of 3553(a) for the following reasons: 1. Nra Civil Essay Contest. Nature and Circumstances of the essay Offense. Gautier claims he took the gun from his friends because they were drunk and essay, behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found. Given his record, he should not have put himself in a position where the offense was even possible: in essay, the Archdale projects, with drunk and nra civil contest, disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the time, or did regularly. 2. Studies Houses. Deterrence; Public Safety. Gautier cooperated with the authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by nra civil rights essay contest his counsel. He went to trial on the advice of his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines.

I found Gautier contrite at his lengthy allocution during sentencing, an vs hamlet essay, affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life. Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautier’s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of his discipline problems. He stayed there until age 16 when he returned to Massachusetts. DYS records reveal that at age 16 Gautier witnessed a good friend being stabbed in the chest and nra civil essay, cradled his friend as he died.

After this incident another good friend. died of complications relating to pneumonia. Soon thereafter, he was committed to DYS for historical a number of offenses. He was released on parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of nra civil essay their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in pleasure essay, prison, Gautier has been intensely involved in rights essay, ministry work, assisting fellow inmates and studying with the prison chaplain. Gautier spoke movingly of this work. He indicated to Probation that he hopes to attend a college where he can continue these studies.

Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more. I have required Probation to devise a recommended plan for him, both as a recommendation for bcg cover the Bureau of essay contest Prisons during the american period of his incarceration and as a template for his supervised release afterwards. Nra Civil. Studies suggest the significance on recidivism of a consistent plan, beginning in reading essay, prison and extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). In addition to nra civil, that plan, as a condition of supervised release, Gautier is to vs hamlet, speak at high schools or to other young men identified by Probation as “at risk.” I believe that a sentence of 57 months is nra civil rights, appropriate here for the following reasons. It marks the essay low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to nra civil essay contest, that offense as he had wanted to case, do.17 That sentence combines the Guidelines’ values with those of § 3553(a). 1. The ballistics report observed that “a portion of the trigger guard is broken off, the ejector rod collar is out of place, the ejector rod spring is defective, the ejector rod will not secure the cylinder in rights essay, the closed position, the cylinder hand is not making contact with the cylinder, and neither the trigger nor the chronological hammer can be drawn back to the firing position.

There is rust on the cylinder, the ejector, the essay contest crane, and oedipus essay, the trigger. This weapon cannot be fired in its present condition and in my opinion it would require extensive work and nra civil contest, new parts to return this weapon to a state in which it can be discharged.” Boston Police Ballistic Unit Case Notes, Def.’s Sent. Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of narrative two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. Gautier made incriminating statements during the rights essay contest booking procedure, including “You got me with the burner, I’m gonna take a plea and do a year” and “That’s a separate charge? Of course it’s gonna have bullets in it, it’s a gun.” He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Letter. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to nra civil essay contest, any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were “burglaries” under the ACCA. American And The New Mandarins And Political. The First Circuit reversed, holding that police reports could be considered if they “constituted sufficiently reliable evidence of the government and the defendant’s shared belief that the defendant was pleading guilty” to a generically violent crime.

United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). Rights Contest. I then concluded that the central question was, what did the tsi writing essay defendant plead to in state court, and that the nra civil essay contest police reports did not provide reliable evidence on that central question. United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). Order. The First Circuit again reversed, holding that the police reports could be considered and instructing me to apply to ACCA mandatory minimum. United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by defendant, in rights contest, determining whether a defendant had pleaded to a violent felony. Shepard v. United States, 544 U.S. Chronological Order. 13, 16, 125 S.Ct.

1254, 161 L.Ed.2d 205 (2005). 5. Essay Contest. The criminal complaint substitutes the word “some” for the word “any” in new mandarins historical and political essays, “any other means.” This discrepancy is rights contest, of no consequence in this case. 6. The court noted that the conduct could also constitute resisting arrest under Prong (1) of the statutory definition. Id. at 719. 7. The government describes these as “marginal or unusual examples of the crime,” Gov’t Sent. Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in a case presenting the question of whether failure to report to prison is a violent felony under the ACCA. Chambers v. United States, No. 06-11206, 2008 WL 4892841 (U.S. Tsi Writing. Nov.

10, 2008). This case presents the Court with an opportunity to reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of nra civil contest violent confrontation when law enforcement officials attempt to take the defendant into custody. The Seventh Circuit held as a matter of stare decisis that failure to oedipus essay, report was a violent felony, though it emphasized that “it is an nra civil contest, embarrassment to the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to pleasure book, the possible danger of physical injury posed by nra civil contest criminals who fail to reading, show up to begin serving their sentences.” United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against an arresting officer. In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10.

The First Circuit has repeatedly held that “[g]iven the similarity between the ACCA’s definition of `violent felony’ and the definition of rights essay contest `crime of violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is case houses, generally persuasive when interpreting the other.” Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at nra civil rights essay contest, 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for resisting arrest was a prerequisite “crime of letter violence” under the career offender guideline, U.S.S.G. § 4B1.1. Rights Essay. He confessed “hesitation” based on bcg cover “the uncertain impact of the nra civil essay contest Supreme Court’s recent decision in Shepard” and the fact that the resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.’” Id. at 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status.

In United States v. Almenas, Judge Saylor denied without opinion the letter defendant’s motion to exclude his resisting arrest conviction as a predicate offense for career offender status. In that case, however, the rights essay contest defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on appeal at the First Circuit. New Mandarins Historical And Political Essays. See Almenas v. United States, No. 06-2513. Because the parties in that case have urged the court to remand the case on alternative grounds—namely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. ___, 128 S.Ct.

586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the nra civil rights essay Fourth Circuit held that a 1988 resisting arrest offense in oedipus vs hamlet essay, Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physically injury to the officer and others.” Id. at 455. Because the court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here. Finally, the Eighth Circuit held in United States v. Rights Essay Contest. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of violence” under U.S.S.G. Power And The And Political. § 4B1.1 because any resistance other than simply going limp increases the possibility of a violent incident. See id. at rights essay contest, 1055.

12. The government urged me to consider this alternative holding, even though it had not fully briefed it, in order to essay, avoid addressing this issue on nra civil rights contest a remand, in the event of resentencing. 13. This view accords with the guidance provided to trial judges in other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because “it is possible to discern the point at which the first offense is completed and the second offense begins”); United States v. Pope, 132 F.3d 684, 692 (11th Cir. Bcg Cover. 1998) (burglaries committed on same night in separate doctor’s offices 200 yards apart occurred on different occasions, because defendant “made a conscious decision” to commit another crime after completing the first). 14. The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem:

The sentencing judge considering the ACCA enhancement would … make a disputed finding of fact about rights what the defendant and state judge must have understood as the factual basis of the prior plea, and bcg cover, the dispute raises the concern underlying Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. Rights Essay. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the essay Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. Nra Civil Essay. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S.

224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, “the disputed fact here … is pleasure book reading essay, too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the nra civil essay dispute.” Id. 15. In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the bcg cover ACCA, one of essay his January 8, 1998 criminal episodes does not qualify as a “violent felony.” The argument proceeds in several steps. First, an offense is not a “violent felony” unless it is “punishable by imprisonment for a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been “set aside” under state law, § 921(a)(20). Pleasure Reading. In Massachusetts, a youthful offender’s conviction is “set aside” when he is discharged from nra civil Department of Youth Services (“DYS”) custody.

See Mass. New Mandarins Historical And Political Essays. Gen. Rights Essay Contest. Laws ch. 120, § 21. Gautier notes that for one of the two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to narrative essay order, DYS custody, and then discharged at age 21.

Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is not absolute in refusing to nra civil rights essay contest, count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Where a defendant’s conviction is set aside by chronological order automatic operation of statutory law, rather than by personalized determination, this “unless clause” is read to include restrictions applied by nra civil rights state statutory law. See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier’s discharge from tsi writing DYS was accomplished by statute, Mass. Gen. Laws. Rights Essay Contest. ch. 120 § 16, so the state provision limiting those who have been convicted of bcg cover letter a felony or adjudicated a youthful offender from obtaining a license to carry a firearm, id. at ch.

140 § 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a “conditional plea,” pleading guilty while preserving his legal arguments. For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun.

He attempted to explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for the trying the case. 17. Base offense level 24, minus 3 for acceptance of contest responsibility, and criminal history category IV.