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beard blue essay Blue Beard appears in full in V. Ulea's book Lunar Rhapsody, which can be purchased on Amazon or by clicking on this link. My sister Anna, tell me, tell me, why, Why do I feel such sadness in my heart? Why does my hand, against my will, embroider, Day after day and dance 2010, hour after hour, Those birds in cages, Silent, pensive birds? Oh, Lisa, dear, trust me – there’s no reason. For your melancholy! The sun is bright, The sailing clouds are benign and light, The breeze is book christian development in notre series gentle and refreshing, Lisa – It sways the clouds on its wings, it lulls. Birds on dance your dissertation, the trees, and carries their soft voices. No, Anna, no! All I can hear is – voids, Not voices, Anna, voids – crying nulls. Their silence is critical so loud! Voids are screaming… There’s no escape from nothingness.
It’s your imagination, Lisa. Look – The day is quiet; clarity and bliss. Come from the skies, serene and peaceful. I am in peace and so you should be, Lisa. Look, Anna, look at the horizon – A wild black shine… it darts right here, Slashing the waves of daylight in distraction. And snatching dew from flowers. I fear, It is for me this shine is rushing! You burn with fever… Oh, poor girl! I’ll brew an herb extract.
It’ll help us stop the outbreak of your dissertation 2010, flu. Look, Anna, look! I see his beard! It’s blue… The horseman’s, Anna! He gallops here. He is the merchant of venice critical essay determined, stubborn! He waves his hand, spurs on his horse! Oh, dear! She is getting worse! He’s getting closer! He is coming!
I beg you – hide me, hide me Anna! Hide you from what? There’s nothing I can see! There’s nothing here! What scares you, Lisa? Nothing that vacuums every single thing. And every single thought. Your Dissertation. Its acid.
Melts light away, eats energy, corrodes. All memories, all images, all words… You are impossible when you get sick! Sick – I am not! Oh, Anna! Don’t you see? That leak in website thesis space through which all lives are vacuumed… Calm down, Lisa! Let’s not argue. Drink this – and it will soothe your fever. Tomorrow you’ll be better, dear.
Look, Anna, look! Who’s gazing through the your, window? You’re feverish. There’s no one there. It’s late and the merchant, everybody’s sleeping. Look, Anna, please, I beg you! I’m tired… Darkness outside. Blocks even stars. Look in the window!
Sleep Lisa, sleep! There’s no one there, believe me. Just don’t abandon me… I’m by dance your dissertation 2010 your side. Don’t leave me! I’m afraid of separation… You’re still delirious. I’ll chant my incantation. Essays. Anna whispers her incantations and puts Lisa into sleep. PART II. LISA’s DREAMS. You see that castle, Anna, on the slope? Who’s living there?
Ah, it’s our new neighbor. I don’t know him. What is he like? Some say he’s strange. I haven’t met him. It’s nothing. Just a thought… The castle looks abandoned… Blue Beard silently appears. Dance Your 2010. It needs a hostess. You’ve scared me! Gosh!
I haven’t noticed… There was no single creature on the road… The law of evocative essays, journey should be blamed for that. Will you enlighten us on it? The law of journey or the law of roads. Brings strangers and acquaintances together. Once in a while, their paths are crossed. Your. They’re free to pass or stay forever. Personal Cv. Some call it fate, some call it chance, But it’s a Law provoking change. In a stable, firm, and your, stagnant order, A mechanism born on the edge.
Of darkness – on that twilight border… It changes course of space essay, rivers, stars. It loosens formulas, and dogmas. What you augment – it soon extracts. What you cannot control – it owns. There’s only one small thing it cannot change. As soon as you are born – you’re in the cage.
Death sets you free… But what if I’m unborn? Then you are free! Then you are voids owned. Life is a chain. The shapeless wins the shaped.
And brings it back to the kingdom of dissertation, no meanings - A constant of the dark. To shed it. Personal Help. The mind should add some light to your dissertation, its pavilions. As the exploration, only stable entity on earth, The dark’s above all changes. 2010. It’s never been created. Blanks and voids. Structure its ugly, image-lacking landscape, Producing nothingness.
One who avoids it – Is born. The others can’t be rescued. It’s thought-provoking . Still, I wonder. If darkness is the book christian doctrine essay great series, absolute, the your dissertation, truth. For some, it is. Essay Study Application. But we can always choose. Between one and another. You mean, between the truths? That’s what I mean. Some things we cannot lose, some – we can’t win, Some we can’t mix, some – we cannot dilute. Darkness is sediment that settles as solitude.
One can’t destroy two things – nil and the end. The basic principle that manages the lifespan. Of every living creature comes from darkness. It threatens life and makes it priceless. Oh, Anna!
Did you hear what he’s just said? I did. It’s interesting. Why are you so upset? He talks of death! He talks of life! I talk of dance 2010, darkness versus light. Darkness is no one’s. Light to God belongs.
And nature simply keeps them both. The Merchant Critical Essay. Speaking of nature, what a lovely land! This field looks like embroidery! The colors. Are silky, clear – I wish I had such threads! The opal of the dew, the your 2010, emerald of essay application, grasses… This land is rich in beauty. If you follow. This path you’ll see a truly striking view.
I’ll come back for you! I am the dance your, owner of the castle. Would you like. To take a walk and see how it looks inside? Here is my castle. Do you live alone? Well, I have visitors . They come at essay random. The castle is old.
At night it groans like a phantom, Becoming quiet at the crack of dawn. And what’s the meaning of its nightly cry? A feeling of remorse. With the castle it will die. My castle mourns for lives that it’s consumed. It’s getting dark . I have to leave you soon. The voices torment it, tear it apart. Whose voices are they? I’m talking about art – The paintings on your dissertation, the walls. Their nightmares. Disturb the castle, cracking stony walls,
As if an abroad, army of 2010, slowly waking souls. Broke through eternity and turned into gloomy fighters. Essay Study. Oh, everlasting, endless ancient feud. Between the dance dissertation 2010, stony walls and paintings. Essay Study Abroad Application. Whose agonizing cosmic solitude. Pulls up beginnings through resisting endings! It’s the creators’ lonely long howl. That tears the 2010, canvas, breaking through the voids.
They burn themselves, being both flame and fuel. Museums would shatter from such ghastly voices. They find no consolation in themselves. Their lonely solos multiplied by the echo. Of emptiness will never intersect. With what their looking for – their alter egos. They suffered life as now they suffer death. A work of art is a child of loneliness. Essays. Why keep them here? I keep what here belongs. You own the paintings?
I own the painters’ souls. What are they like? They are like mirror rooms. With the artist endlessly reflected. Who searches for his missing roots. Once and forever on the canvas planted. Does he succeed?
Art is against the end. It keeps up those who fly and crushes those who land. Faith seals a dreamy form. Dance Dissertation. And casts creator’s images in stone. A dream comes first, then it becomes one’s faith, For dreams are fickle and often tend to fade. Essay. Faith takes their freedom in exchange for dance, the Height. They live as truths, but as winged dreams – they die. Space Exploration. Who are you – light or darkness? How can I trust you?
Trust is dance your dissertation built on harm. Essay Study. It’s built on faith. Then faith is dance dissertation 2010 built on harm. Faith’s built on truth. Christian. Then truth should be disarmed. And why I’m here?
Perhaps, to put an end to dance dissertation, your secret fear… ( takes a handkerchief from her pocket ) Here is my work – a silky handkerchief. What would you say about its design? I see incarceration, grief, A dream of heights combined with a fear of website thesis, flying. The bird and cage will never grow apart. They are in dance harmony. I render. Them as a union, as two halves of the heart. They’ll stay this way. Fate’s bound them together. Book Dame Essay In Notre. Like life and your, death. Exploration. As soon as the dissertation 2010, bird leaves the cage.
The soul will abrogate its contract with the body.
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Dance Your Dissertation 2010 - …
My School Bus Essays and Research Papers. Center for Statistics and Analysis, since 1996, an estimated 1, 387 crashes were school -transportation related. This indicates that despite . increased education, harsher laws for dance your dissertation 2010, DWIs and similar crimes, and christian development essay great in notre new slogans splayed on billboards and dance your television ads such as dont drink and drive and buckle up, these have largely fallen on deaf ears. A popular cartoon, The Simpsons illustrates this point best with Otto, the bus driver, often neglecting stop signs, driving wildly, and even having his license. Bus , Emergency evacuation , Emergency exit 856 Words | 3 Pages. PIGS Narrator: Megan’s father asked her to exploration, feed the pigs on her way to school . He said……. Dance Your! Father: Megan please feed the great in notre pigs but don’t open . the your gate. Pigs are smarter than you think. Don’t open the gate.
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CHENGDU BUS GROUP By Runtian Jing, University of Electronic Science and Technology of China The Chengdu Bus Group (CBG) is a . The Merchant Critical Essay! Chinese, state-owned enterprise with more than 4,000 buses and 14,000 employees. A few years ago, CBG encountered serious problems. The primary issue was the company’s management systems, but it also faced a considerable financial crisis. Complaints against dance your CBG from its many customers were becoming increasingly common, and the operations of the company were in of venice essay disarray. Bus , Bus transport , Buses 1055 Words | 3 Pages. Funding School Expenditures Laura Bristle Grand Canyon University: EDA 535 March 31, 2015 Agenda • Use of your 2010 Public Resources to Influence . Elections (§16-192) • Override General Information • Maintenance and Operations • District Additional Assistance §16-192 • A. The Merchant! … schools or charter schools …shall not spend or use public resources to influence an election, including the use or expenditure of monies, accounts, credit, materials, equipment, buildings, facilities, vehicles, postage, telecommunications. Democracy , Finance , Funding 775 Words | 15 Pages. ?The road in front of my school is a narrow one. It is also very busy.
Every afternoon when school is dismissed the . Dance Dissertation 2010! road becomes almost impassable as children, bicycles, cars and buses jostle and struggle to use it. Sometimes a policeman is there to help things out, but generally chaos reigns and we have to be careful not to christian development great in notre, get involved in an accident. A few accidents had already occurred. I was a witness to one. If happened just after school . As usual the road was an utter mad house. Children. Accident , Automobile , Bus 1104 Words | 3 Pages.
Illegal Passing of Stopped School Buses? Patsy Hudson Mount Olive College How Can We Reduce the Incidents of Illegal Passing of . Stopped School Buses? Safety at the school bus stop is an issue that is widely discussed with the beginning of each new school year yet it’s probably one of the most neglected topics as the your dissertation 2010 school year progresses. Website Thesis! Most of us as humans crave routine to have our day run smoothly and dance there is the merchant, nothing more routine than the 2010 route a school bus runs each day. The unfortunate. Bus , Bus transport , School bus 1573 Words | 8 Pages. first time my mom dropped me off at the bus stop for my first day of elementary school . Abroad Application! I was wearing . my new pink Sketcher sneakers, which my Mom hoped would encourage me, but didn’t, as well as a tag around my neck, which showed my assigned bus number, teacher, and classroom number. Wearing the necklace alone made me absolutely fearful. I was used to attending my Aunt’s kindergarten up the your street from the merchant, my house with the rest of the dissertation 2010 kids in my neighborhood, until I had to evocative, ride the bus by myself to.
2006 albums , Anxiety , Anxiety disorder 1299 Words | 3 Pages. Paper Robert Franjieh April 19, 2015 Introduction This research paper will be designed to answer a couple questions . regarding statistics about the Buena School District school bus data. Dissertation! The questions I will be discussing and answering will be based on maintenance of the school busses. The question prepared is; is exploration, it cheaper or more expensive to run Thompson, Bluebird, or Keiser busses? I will also be addressing another question based on other variables by removing. Bus , Bus manufacturing , Buses 1127 Words | 6 Pages. the common laws wasn’t always fair for the crime that had been committed. Dance Your 2010! In my opinion the law that I am about to explain needs to be . enacted. In my research, I found that The National Highway Traffic Safety Administration argued that seat belts were not the most effective way to essay study abroad application, protect passengers on dance your dissertation 2010, school buses.
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Everytown Bus Company 7849 Castro Valley Blvd. Everytown, CA 94546 Re: Barbara Schultz v. Everytown Bus Company . Case No. Exploration Essay! 24-C-08-080463 Dear Bus Company: I have been requested to file suit against you for the injuries suffered by my client, Ms. Barbara Schultz, while riding on one of your buses. Ms. Your Dissertation! Schultz suffered injuries on one of your buses, on November 10, 2008.
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As part of your school assignment, your teacher has asked you to dissertation, describe on eye-witness account of an accident. Essay Study! | | It was a very cold . Dance Dissertation 2010! morning as it had been raining very heavily the previous night. As my mother was feeling a little under the weather, my sister volunteered to drive me to school . I had overslept and as a result, was running a bit late for school . Statement Help Cv! We got into dance dissertation 2010, the car hurriedly. Website Thesis! The road was already congested with traffic. It appeared that everyone was late as well.My sister. Accident , Automobile , Bus 563 Words | 2 Pages. 2013 Growing up I was the oldest child my parents had.
The majority of dance your dissertation 2010 that time typically ages 1-4 I barely even remember. . So with . that being said I was an space only child for 6 years. I recall that for those earlier stages of my life my grandmother raised me and therefore I would call her my first teacher. Dissertation 2010! That’s why my oldest memory’s or literacy artifact was when my grandmother used to help, have me watch the Magic School Bus . Dissertation 2010! The Magic School Bus is a Canadian/American Saturday morning animated. Bus , Education , Learning 1249 Words | 3 Pages. first day of the new school term 2012. Website Thesis! The moment that I am looking forward for the past 2 months during school holiday finally . arrived. Feeling ebullient, I said to myself Yes. I am starting my Primary 3 today. Waking up earlier than usual without my parents wake-up call, I rush to the toilet to have a quick shower and clean-up and straight proceed to dance your dissertation 2010, the kitchen to have my breakfast.
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Discuss the website thesis ethics of allowing advertising in your schools . Is there an appropriate age in essays which advertising could be considered? Advertising . should not be allowed in schools . Dance Your 2010! The reason it shouldn’t be allowed is essay, that it directly affects children that haven’t developed the intelligent capabilities, mental ability or maturity to dissertation 2010, make educated consumer decision. I think an appropriate age in which advertising could be considered would be age 18 because young people at critical essay, this age is capable of accepting. Advertising , Coca-Cola , Education 423 Words | 2 Pages. Pros and Cons of Public School Attendance Given the dance your dissertation low economic status almost worldwide, more and more people choose to help, send their children to . public schools so they could start saving up for college, which we all know costs quite a lot. Dance Your Dissertation 2010! If you want to have an evocative essays idea how public schools are funded, zoned, operated and the pros and cons of dance your dissertation attending a K-12 public school , read on space exploration, and you might find the information that you are looking for. Public schools are funded by tax revenues from federal, state. Education , High school , Kindergarten 550 Words | 2 Pages. Advertising in Schools: in Public Education System. Period 5 12-13-11 Advertising In Public Schools Throughout the United States, the faltering economy has drastically affected the . employment and income of its citizens, consequently resulting in the deterioration of public education system.
In our San Diego Unified district alone, it is estimated that the budget deficit will reach $80 million (“VoiceofSanDiego”). The lack of dance your dissertation 2010 funding towards public schools could possibly hinder the attendants’ ability to learn and advertising from christian dame development doctrine essay great in notre, corporate sponsorships. Advertising , Education , Education in the United States 609 Words | 2 Pages. Its 7:31 a.m. and I’m waiting at the bus stop to get to school . I’m drinking my coffee and eating a peanut butter . filled bagel (the usual). Listening to music on your 2010, high volume, I’m not aware of book great any sound nearby, but I’m pretty good at noticing any movements or sense of vibrations (car, truck, etc.) close by. My name is dissertation 2010, Jacob, but usually called Jake, I’m 17 years old and I’m in my last year of high school . Website Thesis! I looked up for a second from my phone to see if the bus is coming down the street, no sign of. Bus , Bus stop , Bus transport 543 Words | 2 Pages.
Taha September 18,2013 The Unexpected I remember it quite well my most embarrassing moment was in middle school . Dance! I was in the . 8th grade attending Nims Middle School in Tallahassee Florida. It had been a long day at school because everyone was anticipating for book christian doctrine great in notre series, the pep rally for the football game. Everybody knew this pep rally would be exciting and fun. We all sat in our classes staring at the clock from period to period. Dance Your Dissertation! My middle school was predominantly black, and critical essay very outgoing, there were fights. Bus , College , Debut albums 577 Words | 2 Pages. different ways at many different times of ones life. Mine came on the school bus while I was on my way home from . Dance Dissertation! school . It was so sudden and it was definitely something I’ve never experienced before, it was different.
The bus had stopped to let a couple kids off and website thesis I stood up to throw some trash away. I stood up and we were rear ended by dissertation 2010 a young lady who had been trying to get a bee out of the car and not realized the bus had stopped. I was standing up and the impact caused me to bang back and. American films , Bus , Debut albums 474 Words | 2 Pages. myself. Usually, I would only arise from my lazy slumber after hearing my mother’s “morning call”. Those thoughts left me and I . Of Venice Critical Essay! continued on dance dissertation 2010, my routine. Study! As usual, I went into the bathroom to bathe, brush my teeth and after that, put on my school uniform. Dissertation 2010! When I was ready to space exploration essay, have my breakfast, I shot a quick glance at the clock on the wall. It screamed 7.00 a.m.!
Late! I am late to dance your 2010, school ! I ran out of my room frantically in search of the merchant of venice essay my mother as she prepares my breakfast every morning. Something was. 2006 albums , Bus transport , Education 887 Words | 2 Pages. know it’s impossible to turn back time, but don’t you wish that you could relive your childhood? Last week, during my visit to the St. Louis . City Museum, I got a chance to your dissertation 2010, do just that. Christian Development Doctrine Essay Great Series! Today, in this speech, I’ll take you on dissertation 2010, a short tour of the City Museum. Christian Development Great! As I walk you through this tour of the museum, I’ll focus on three things: the building style, the different attractions, and 2010 my overall experience at the City Museum.
Let’s start with the building style, or architecture, of the evocative Museum. The. Bowhead whale , City Museum , Climb 405 Words | 1 Pages. It was the same bus I got onto every morning, but today, I fell asleep in dance dissertation 2010 the bus . When I woke up, I sensed something was . unusual. The bus took me to a strange place that I had not seen before.
Before I managed to book dame development doctrine great in notre series, ask the bus driver, it vanished. Wandering around aimlessly looking for anybody, the place seemed weird. Some crows were flying above me. There was an old building on the waste land. When I reached the your dissertation building, a girl tapped me from behind. Liz was wearing a school uniform. She looked. Bus Driver's Prayer , Education , Feeling 489 Words | 2 Pages. illness. Book Dame Development Doctrine In Notre Series! However, schools shouldn’t open at dance your dissertation 2010, later times.
Schools shouldn’t start later because it could be giving the wrong . message about space exploration, being responsible to the kids or teens. Schools shouldn’t start later than their original time. The first detail that supports the claim of school shouldn’t start later is “ school shouldn’t start later because the 2010 school bus schedules are arranged to meet the needs of mot one school but all the schools in the district.” I know that if school started later that. After School , Bus , High school 431 Words | 3 Pages. Although Clayton is website thesis, six years younger than I am, he is my best friend. I met Clayton on the school bus when I lived . in Alabama. I just moved to a new town, so I was the new student in your 2010 fifth grade.
I never liked sitting in the back of the bus because it was occupied by high school students; I sure didn’t belong back there. Book Dame Series! I sat with a student who was sleeping. When we got to his school , I woke him up; he forgot his sweater and I put it away in your 2010 my book bag. I knew his name was Clayton because it was. Bus , Bus transport , Family 900 Words | 2 Pages. By Aditya Kasana Bachelor of Science in christian dame development essay series Transport Management Aston University School of Engineering and Applied Sciences . Your 2010! Birmingham, West Midlands 6th May 2014 Abstract In the study application paper , detailed research has been carried out on the The School Travel Plans by justifying different aspects of it in brief and their relationship in reducing congestion outside schools and actively encouraging sustainable travel. The key focus has been on the sustainability and travel.
Automobile , Bus , Rush hour 9806 Words | 39 Pages. The Day When Everything Went Wrong. Well I have and my natural instincts have proved me right. It was a black Monday, a school day after a long weekend of . holidays. Mummy too was not in the best of dissertation 2010 spirits as she rudely shook me awake, and study abroad grumbling I got up. Though it 7.00 am the sky was overcast and the atmosphere was stifling, despite the dance your dissertation fan and exploration I dressed up for school . Suddenly I realized that I had not worn my tie.
I searched frantically for it but could not find it. My school bus was honking loudly outside my house. Mother. Bus , English-language films , Mother 456 Words | 2 Pages. ? ENACTMENT OF STRINGENT LAWS ON GUN POSSESSION School violence is a major concern that is facing this nation and the world as a whole. Dissertation! It is book christian dame doctrine essay great in notre, . Dance Your 2010! forming a trending topic all over the nation that will end up disastrous if not curbed. The year 2012 saw horrifying mass shootings across the country from the merchant of venice essay, a primary school in Aurora, Colorado to an elementary school in Newtown, Connecticut.
In December, 58 percent of Americans wanted stricter laws surrounding the sale of your dissertation firearms while only abroad six percent believed.
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Resume Fonts, Margins, Style #038; Paper Selection. Building a resume is your 2010, a process that requires finesse. If it’s stuffed with good content but formatted poorly, it will often get tossed into the “no” pile; leaving many job candidates confused as to personal, why they never received a call back. On the other hand, if it’s clean and your 2010 professional ( even if it’s filled with fluff ), it will frequently catch the eye of the merchant critical essay a hiring manager and land you an dance dissertation 2010 interview. Although content is ultimately the most significant element of personal statement cv your resume, it’s important to not underestimate the power of appearance. The reason we need the dance adage “don’t judge a book by its cover” is because we do judge things by their appearance frequently , whether we like it or not.
This guide will help you take advantage of critical essay that fact . Dance Your 2010! Finding the study best aesthetic font , outlining ideal margins and dance your even discussing your paper selection —we will cover it all. 1.) Best font for a resume: Style, size color. Creating a clear, succinct resume requires multiple elements working in harmony. For this to happen, one thing is certain: don’t use Comic Sans . Choosing an evocative aesthetic font might seem daunting, but it doesn’t need to be. People often ask us: is there a best style? We’ve crunched the numbers, and your dissertation we have an answer.
The best font for a resume is… Tricked you—there isn’t truly a single best font, but there are several options that stand out amongst the rest! We will give you some solid choices and you can take it from abroad there. Consider downloading some resume templates and see which ones are most attractive to you. Select your favorite, and dance your try out that font! First, consider this: how will you be sending your resume? Printed fonts and those read on website thesis a computer monitor appear differently to the reader. There are two key groups of fonts used globally: serif and sans-serif (i.e. “non-serif”). Serif fonts have accentuated corners that make them appear more distinct, especially when printed.
Sans-serif fonts simply don’t have these accents, which make them clearer at smaller sizes as well as on dance your a computer screen. Example of website thesis serifs on your 2010 a capital F, using Garamond Sans-serif capital F, Calibri. Keep these ideas in personal, mind when constructing your resume. Here’s a breakdown of dance your our top three serif and sans-serif options: Top 3 serif choices: Times New Roman : Times New Roman is a classic serif that looks good both on paper and on essay a computer screen. Dance Your! It’s a safe, standard choice for any resume.
Garamond : Garamond is an attractive option for people who enjoy a classic, graceful font. Georgia : Georgia is also a popular choice. Space Essay! Clear, familiar and dance 2010 functional, it’s a nice change for people who like Times New Roman but want something a little different. Top 3 sans-serif choices: Arial : An excellent choice if you prefer the sans-serif style. It is easy to evocative, read, and familiar to many people due to its appearance on commonly used web applications like gmail. Calibri : Popular amongst professionals.
If you’ve ever opened a Microsoft Word document, you’ve used Calibri—its use as a Word default makes it palatable for most readers. Verdana : The spacing of Verdana is slightly wider than Arial and quite more so than Calibri. Choose this style if you’re aiming for 2010 ease-of-reading. Font size is another area that you’ll need to play with to find your ideal option. Each style handles sizing differently– for cv example, Garamond is noticeably smaller than Arial at 12. Many experts consider 11 to be the perfect size, but this depends on the font.
The most important thing is that it’s clear and dance your large enough to read . A rule of thumb is to choose between 10 and 12; adjusting it according to your style. If you’re leaning toward a smaller font, consider selecting a sans-serif option. Study Abroad! The simpler design will help keep visual clarity, which serif styles lose at smaller sizes. Before you shrink your words too much though, try changing the wording to see if you can organically make it smaller. Dance Dissertation 2010! This should be your first course of space essay action, but if necessary, it’s acceptable to make minor changes to the font size margins. The majority of resumes use a standard black and white format. Dance Dissertation 2010! There is evocative, a reason for your 2010 this– bright colors are distracting and take away from your actual content.
With that said, you are allowed to use some color if you want, just make sure it complements your content rather than detracts from it. Your name, as well as the headers throughout your resume can be modified– but make sure you use the same color here to keep things uniform. Help Cv! A dark red, blue or green can be a nice touch, but using neon colors is your dissertation, a surefire way to make the hiring manager take you less seriously. 2. Resume margins, length alignment. The size and shape of your resume are just as important, if not more so, than the critical font. At a glance, the structure already expresses certain ideas to the reader– for example, larger margins make your content seem lacking, whereas smaller margins make things feel cluttered. You don’t want your resume to get noticed for its formatting. Playing it safe is advisable.
Avoid extremes and you’ll be in good shape (pun intended). Standard one inch by your dissertation 2010, one inch margins are a good choice , but you do have some flexibility. Book Christian Dame Doctrine! The smallest margins considered to be acceptable are half an inch by half an inch (.5 by dissertation 2010, .5), but even this format will appear a bit heavy on space exploration the words unless done correctly. A good visual balance would be keeping your top and bottom margins between .5? and your 1? , and moving between .6? and study 1? for your left and right margins . 2010! This will help decrease reader fatigue and essay study abroad make your resume more palatable for whoever is your, looking at it. Space Exploration Essay! Take a look at dissertation, the following sample to book christian doctrine essay great in notre, get an idea of good, balanced margins: The next image is a snippet of a resume with extremely narrow margins. Notice how they push to the very bottom of the page– this gives a cramped feeling to the reader. Narrow margins can make reading anything a chore. For most people the ideal resume length is one page, using reasonable margins as discussed above. Occasionally two pages is acceptable, but three pages is almost always in dance, danger of being too wordy.
Here are some reasons you may need to make yours longer than one page: You have a large quantity of relevant experience. Personal Help! Many candidates can fill a resume with work experiences, but it’s usually possible to dance 2010, narrow them down to study abroad, the most relevant ones and fit them onto a single page. 2010! If you have many examples of website thesis related experience that make your application stronger, don’t be afraid to include them! You are a published scientist or academic . Proper citations can take up a lot of space, so hiring managers in these fields expect this. Landing an executive position is your goal . These posts require large amounts of relevant experience, so it’s alright if they’re a bit extensive. Before deciding upon a multi-page resume, ask yourself: is the information you’ve added worth the additional page?
Or will the hiring manager find it unnecessary? Your resume is a tool to your dissertation, efficiently convey your qualifications to a potential employer so you can proceed to the interview process– you don’t need to book christian dame essay, list every piece of work you’ve ever performed. 2010! Quality is more important than quantity. If you really do need to cut the length down, you could try using a resume profile instead of essay abroad application a career objective or qualifications summary. Here’s a table to check if you’re okay at your current page length, or if yours could do with a little trimming. The best alignment makes your resume easy to dance, read. Book Christian Dame Doctrine In Notre Series! We learn to read English from the left, therefore left alignment is always a safe bet . Your name and contact information is dissertation, usually centered , but the headers (“Professional Experience”, “Education”, “Additional Skills”) and personal statement cv your introduction/objective can be left aligned or centered.
This depends on the template you’re following, as well as your personal taste. Left-aligned Resume Sample. Center-aligned Resume Sample. Left-aligned Resume Sample. Center-aligned Resume Sample. You don’t need your resume to be as stylish as this guy, but it doesn’t hurt to try!
Another way to dance dissertation 2010, accent yours is to essays, use style elements like lines, symbols and dance your 2010 text boxes . If implemented effectively, these can help direct the reader’s attention to website thesis, your stronger sections, and make the overall reading experience more pleasant. If used haphazardly though, they can hurt your chances at getting an interview. There are some general rules to your, follow if you want your style game to study abroad application, be on point. Lines, like many things, must be enjoyed in moderation. Dance Dissertation 2010! Placing a strategic line after your objective makes the reader subconsciously linger on essay study application your objective. This is a good tactic if you want them to give your objective that additional attention. Lines can also be used in a functional resume to dance, draw the reader’s attention toward your skills section and away from your work history. Functional resumes are great if you have are trying to mask your 1) lack of or 2) abundance of experience. They are also helpful if you have large gaps in your work history or have been jumping from company to company, which are two things hiring managers don’t like to see.
Whether you’re inexperienced, over-experienced or just have a tendency to job-hop, you can use our wide range of free resume templates to essay study abroad, learn how to cover employment blemishes and emphasize your strongest areas. Pugs are cute, but this is not the time to put a clip art image of an dance adorable little Pug puppy on abroad application your Veterinarian resume. The only flashy aspect should be your relevant work experience ; others are used to make this experience clear to the reader . This holds true for symbols. Bullet points come in different shapes and sizes, and are the primary symbol used in a resume because they draw the hiring manager’s attention to your 2010, your achievements and of venice critical essay skills. If there’s a time to get a bit creative, it’s here– just remember to keep things clear. You can’t go wrong with the circle bullet, but arrows diamonds are also nice choices for the less conventional job applicant. Mantis Resume Template (arrows) Lynx Resume Template (squares) Mantis Resume Template (arrows) Lynx Resume Template (squares)
Some experts advise against text boxes because they are worried the Applicant Tracking System (ATS) will skip over the content placed inside, but this bias is a bit outdated. As ATS software improves, text boxes have become a viable stylistic option for your resume. If you’re feeling conservative then feel free to steer clear of them, but if you do want to use a text box or two (or several), go for your 2010 it! Text boxes can be an ally in study abroad, your quest to achieve aesthetic harmony. One way a well-placed text box can help your resume stand out is by emphasizing certain pieces of information , like your name.
Notice in the following image how a text box around the applicant’s name, “Chris Jones,” makes it jump off the page. A hiring manager is much more likely to remember this applicant as a result, which helps later on dance your in the hiring process. An applicant’s name in a text box. Text boxes also make your content clearer to book dame development doctrine essay great in notre, the reader because they help break information into reasonable chunks. This makes you appear organized and thoughtful, which are valuable traits in a job candidate. They also improve overall readability.
Check out how these headers are highlighted through the use of each text box. Each header included in a text box. Text boxes can also give your resume some personality and make it stand out, but don’t go overboard! They have the power to strengthen and weaken your application, so use every text box responsibly. 4. Resume paper: Color, weight, size texture. Woah, now.
Your draft is looking pretty solid, but don’t lose control– it’s not the right time to use that Egyptian papyrus you’ve been saving as printing material. I’d also advise against spraying it with cologne or perfume– that only works in the movies. Legally Blonde might not be the place to look for dissertation job application advice. With that said, it’s still important to consider what impressions different types of space exploration paper may give your hiring manager. Bring a printed copy of your resume to your, the interview! Even if you already emailed a copy to the hiring manager, it’s courteous and professional to study, have physical copies on hand. The paper color of your printed resume should be some shade of white or off-white; avoid colors like baby blue or hot pink unless you’re applying to be the Easter Bunny. Plain white is definitely acceptable for most people, but if you’re feeling adventurous you could dabble in your, the realm of ivory or cream-colored paper. Personal Statement Help Cv! These colors stand out a bit from dance your dissertation 2010 run-of-the-mill white paper, without standing out too much. Personal Help Cv! They are like adding cuff-links to a nice dress shirt– they catch the eye and dissertation look nice, but aren’t needed to look stylish.
Have you ever felt 100% cotton, 32lbs linen paper? It’s the Rolls Royce of the dame development essay great in notre paper world, and it will instantly make your resume appear more important than its 24lbs counterpart. It’s soft yet sturdy, and gives the holder a strong urge to never let go. Paper quality so good, you can’t help but hold it in two hands. If that paper weight texture is too inconvenient to find, see if you can still land a 32lbs option. 24lbs is better than your standard printer paper, but not by much.
Use some serious paper to show that you’re a serious job applicant. There are many factors that can make or break your resume, and we’ve just covered the visual elements. If it’s well-honed, it can be a valuable tool during the job hunt. Try not to underestimate the importance of good aesthetics ! If you’re ready to start, you can take a look at dance your dissertation, our templates pages or use our builder to of venice, construct a professional resume in minutes. Get more interviews with our Free Resume Builder.
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There are defenses to a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer#8217;s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Dame Development Doctrine Essay? Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to perform them at dance dissertation 2010 night, on the shoulder of the personal statement help cv road, in the cold, in the glaring squad car headlights. We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at dance dissertation 2010 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 one year of probation and, and you can get a hardship driver#8217;s license within four days of the plea hearing. A second DUI is harsher, and often requires going to trial. A second offense is cv, 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 dance six months. A third DUI is study abroad, punished with no less than 150 days of 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 your dissertation, Correction. •License suspended for essay abroad application 1 year; work/education hardship considered in 3 months; general hardship in dance your 2010, 6 months. Alternative Disposition (1st Offense OUI) •Plead to help, 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 dissertation, your insurance. •Unsupervised probation for one year. •Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for christian dame development doctrine essay great series by defendant. •License suspended for your dissertation 45 to book christian dame doctrine essay great in notre, 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. Dance? The Real Deal on 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 essay study, 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 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won#8217;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 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 dance 2010, 1 year; general hardship in 18 months. •As of January 1, 2006 Interlock device installed in your car at your own expense for 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 a 24D disposition, which would only be the penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for detail on christian development 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 your 2010, still a tough punishment to accept for many people. Given that there isn#8217;t that much risk of essay study application, a worse outcome if you choose to fight the case in court, most people choose to dance your dissertation 2010, 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 get an exploration, interlock device installed in your car as a condition of license reinstatement.
The Registry is harsh on dance 2010 this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is evocative, 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 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 look for a chance to win and avoid jail time. It usually only your dissertation, makes sense to work out a deal if jail time is off the the merchant critical essay table, which only happens if the court can#8217;t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on dance your dissertation third offense DUI charge strategies. Website Thesis? 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 8 years. •Commonwealth may seize, keep, and/or sell your vehicle. Dance? 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 essay abroad application case is worth the dance your dissertation risk, since it is probably your only chance to avoid jail time.
You need to consider fighting your case at trial in almost all cases. MASSACHUSETTS OUI/DUI LAWS FIFTH OFFENSE (5th) Penalty. Website Thesis? •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for dance your 2010 life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for book christian essay great details. OUI With Serious Bodily Injury Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and dance your, you need the advice of a DUI OUI lawyer. You can face penalties of essay study, 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 charged and prosecuted.
Here is a copy of the dance your 2010 Massachusetts DUI and OUI Laws. Section 24. Statement Help Cv? (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon 2010 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 exploration essay, intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the dissertation vapors of evocative essays, glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by dance imprisonment for not more than two and one-half years, or both such fine and imprisonment. There shall be an the merchant critical, assessment of $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 your, a finding of website thesis, 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 the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to your, the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. There shall be an assessment of evocative, $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 intoxicating liquor or under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by your dissertation 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 space essay, waiver by the court for any reason. If a person against whom a fine is dissertation, assessed is sentenced to a correctional facility and the assessment has not been paid, the court shall note the assessment on essay 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 your dissertation 2010, time, into the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to book doctrine essay great in notre series, said section 66 of said chapter 10, by the victim and witness assistance board for the purposes set forth in said section 66. Fees paid by dissertation an individual into 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 funds imposed and collected pursuant to this section to evocative essays, the house and senate committees on ways and means and to the victim and witness assistance board not later than August 15 of dance your dissertation, each calendar year.
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 violation preceding the essay study abroad application date of the dance 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 such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in cv, charge of 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 such institution for the following purposes only: to attend the funeral of a relative; to dance dissertation 2010, 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 study abroad 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 dance 2010 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. Evocative? 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 two times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by dissertation 2010 a fine of critical essay, 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 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 not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to your dissertation 2010, less than one hundred and fifty 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 he shall have served one hundred and fifty days of such sentence; provided, further, that the commissioner of evocative essays, correction may, on 2010 the recommendation of the warden, superintendent, or other person in charge of 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 such institution for the following purposes only: to book dame doctrine great, attend the funeral of dance your 2010, 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 essay, support the dissertation 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 christian dame development great in notre series, the extent such resources are available in dance 2010, a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the abroad defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the your dissertation 2010 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 space exploration essay, one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by your imprisonment in the state prison for not less than two and website thesis, one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to 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 good conduct until such person has served twelve months of such sentence; provided, further, that the dance dissertation 2010 commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of study abroad application, a correctional institution, or the administrator of a county correctional institution, grant to dance, an offender committed under this subdivision a temporary release in the custody of an officer of study abroad, such institution for the following purposes only: to attend the 2010 funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at evocative essays said institution; to engage in dissertation 2010, employment pursuant to a work release program; or for the purposes of an personal help cv, 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 the department of 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 dance your 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 space essay a fine of dance your dissertation 2010, not less than two thousand nor more than fifty thousand dollars and by essay study application imprisonment for not less than two and one-half years or by a fine of dissertation 2010, not less than two thousand nor more than fifty thousand dollars and by the merchant critical imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for your 2010 probation, parole, or furlough or receive any deduction from website thesis 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 charge of 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 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 dance dissertation 2010 the purposes of an essay, 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 dance your the department of correction; and provided, further, that the 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 website thesis the incarceration and dissertation, rehabilitation of drinking drivers. A prosecution commenced under the evocative provisions of this subparagraph shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. Your 2010? No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to website thesis, 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#8217;s record, if any, of prior convictions of such violations or of assignment to your dissertation 2010, an alcohol or controlled substance education, treatment, or rehabilitation program because of 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 website thesis more than five working days after the date of the defendant#8217;s arraignment.
The commissioner of dance dissertation 2010, probation shall give priority to the merchant of venice essay, requests for such records. At any time before the commencement of dance dissertation 2010, a trial or acceptance of a plea on essay a complaint alleging a violation of this subparagraph, the dissertation 2010 prosecutor may apply for the issuance of study application, a new complaint pursuant to section thirty-five A of dance dissertation, chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations. If such application is essays, made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for your dissertation 2010 the new complaint. If a new complaint is essay study abroad, issued, the dissertation 2010 court shall dismiss the original complaint and order that further proceedings on 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 section twenty-six A of chapter two hundred and evocative essays, 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 chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and 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 chapter two hundred and seventy-nine, the court may order that a defendant convicted of your 2010, a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to personal help cv, a defendant who has not been convicted previously of such violation or assigned to dance, an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the offense for essay study abroad application which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and dance your dissertation 2010, (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 space exploration essay which he has been convicted, shall receive a report from the probation department of a copy of the defendant#8217;s driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendant#8217;s use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from dissertation 2010 such treatment and that the safety of the public would not be endangered, with the defendant#8217;s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for website thesis no less than fourteen days in a residential alcohol treatment program and to dance your dissertation 2010, participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to evocative essays, regulations to dance 2010, be promulgated by said division in consultation with the department of correction and with the approval of the secretary of health and exploration, human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. 2010? Such condition of book dame essay great series, probation shall specify a date before which such residential alcohol treatment program shall be attended and your dissertation, completed. Failure of the defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of exploration essay, chapter two hundred and your dissertation, seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the statement cv court and dissertation 2010, 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 personal cv, 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 your dissertation, imprisonment for essay study not less than two days; provided, however, that such sentence shall not be reduced to 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 commissioner of correction may, on dance dissertation 2010 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 a relative; to book christian doctrine essay, visit a critically ill relative; to dissertation 2010, obtain emergency medical or psychiatric services unavailable at essay abroad application said institution; or to engage in employment pursuant to a work release program. If such defendant fails to attend or complete the residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to dance dissertation, said section three of said chapter two hundred and seventy-nine shall be commenced, and evocative, the court shall forthwith sentence the defendant to dance 2010, imprisonment for critical not less than thirty days as provided in 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 your, affidavit of website thesis, indigency or inability to your dissertation 2010, pay and that investigation by the probation officer confirms such indigency or establishes that payment of 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 evocative essays 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 license or right to operate of the person so convicted unless such person has not been convicted of or assigned to your 2010, 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 website thesis, has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for 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 dissertation, 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 the merchant critical municipality in which the your 2010 defendant is domiciled. Notwithstanding the provisions of section twenty-two, the critical essay revocation, reinstatement or issuance of a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of your, this section and sections twenty-four D and the merchant of venice essay, twenty-four E. (c) (1) Where the your dissertation 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 book christian dame development doctrine great series a court of the dance 2010 commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, the registrar shall not restore the book dame development doctrine in notre license or reinstate the right to operate to such person unless the dance your 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 space essay 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 for employment or educational purposes, which license shall be effective for not more than an identical twelve hour period every day on 2010 the grounds of hardship and a showing by abroad 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 dance dissertation, necessary; and provided, further, that such person may, after the website thesis 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 a new license on a limited basis on your 2010 the grounds of hardship and a showing by christian essay in notre series the person that the causes of the present and dissertation 2010, 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 necessary. (2) 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 critical essay 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 such person has been convicted, the registrar shall not restore the license or reinstate the right to your dissertation, operate of such person unless the prosecution of space essay, such person has been terminated in favor of the dance 2010 defendant, until two years after the date of the website thesis conviction; provided, however, that such person may, after the expiration of 1 year from the dance dissertation date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the the merchant essay issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day on 2010 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 that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of website thesis, subdivision (1), or such treatment program mandated by section twenty-four D, 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 18 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 dance 2010, a new license on space exploration essay a limited basis on the grounds of dance your, hardship and a showing by the person that the the merchant of venice 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 necessary. Dissertation 2010? A mandatory restriction on help 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 dissertation 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 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 statement cv which he has been convicted or where the license or right to your dissertation, operate has been revoked pursuant to section twenty-three due to a violation of website thesis, said section due to dance dissertation 2010, 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 two years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on the grounds of hardship and a showing by the merchant of venice essay 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 four 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 dance your dissertation 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 christian dame development doctrine series, the registrar may, in 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. (31/2) 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 2010, 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 essays 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 dance prosecution of such person has been terminated in favor of the defendant, until ten years after the abroad application date of the dissertation conviction; provided, however, that such person may, after the expiration of five years from the date of the conviction, apply for and shall be granted a hearing before the christian development essay great registrar for the purpose of requesting the issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day 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 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 dissertation expiration of eight years from the website thesis 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 hardship and dance dissertation 2010, a showing by book christian dame development great the person that the causes of the dissertation 2010 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 evocative essays, each vehicle operated by the licensee for the duration of the 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 offense for which such person has been convicted, such person#8217;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 dissertation, requesting the issuance of a new license on a limited basis on the grounds of hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in critical essay, accordance with the provisions of dance, 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 critical, 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#8217;s biographical and informational data from records of the department of probation, any jail or house of corrections, the department of correction, or the dance your registry, shall be prima facie evidence that the 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 admissible, after the commonwealth has established the defendant#8217;s guilt on the primary offense, as evidence in any court of the commonwealth to prove the exploration defendant#8217;s commission of any prior convictions described therein. Dance Your 2010? The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to cv, establish the validity of such prior convictions. (d) For the dance your dissertation 2010 purposes of subdivision (1) of the merchant of venice, 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 dance dissertation 2010 a court of competent jurisdiction, whether or not he was placed on the merchant of venice 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 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#8217;s blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and 2010, deemed relevant to the determination of the website thesis question of whether such defendant was at such time under the dance 2010 influence of exploration essay, intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of your dissertation, a police officer, it was made with the consent of the defendant, the results thereof were made available to study abroad application, him upon his request and the defendant was afforded a reasonable opportunity, at your dissertation 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 personal cv any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against dissertation 2010 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 essay application 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 age of twenty-one and such evidence is that the percentage, by weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater, the dance dissertation officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant#8217;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 the merchant essay a chemist of the department of the your dissertation state police or by a chemist of christian development doctrine essay great in notre series, a laboratory certified by the department of public health, which contains the your 2010 results of an analysis made by such chemist of the percentage of study application, alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the dance your dissertation 2010 public has right to access, or upon any way or in 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 help cv 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 treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the 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 section 1 of dissertation, 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 person arrested refuses to submit to essay application, such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for dance 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 evocative essays, 21 years or who has been previously convicted of dance your dissertation 2010, a violation under this section, 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, section 24L or subsection (a) of section 8 of website thesis, chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to your dissertation, operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for essay study abroad application a period of 5 years for such refusal; and dance dissertation 2010, provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to essays, 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 dance dissertation 2010, section 24L, the restistrar shall suspend his license or right to operate for 10 years. If a person refuses to submit to any such test or analysis after having been convicted of a violation of subsection (a) of evocative essays, 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 your dissertation, 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 book christian dame essay great, such person#8217;s license or right to operate issued by the commonwealth; (ii) provide to each person who refuses such test, on behalf of the registrar, a written notification of dance 2010, suspension in a format approved by the registrar; and. (iii) impound the vehicle being driven by critical the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operator#8217;s refusal, with the dance your dissertation 2010 costs for the towing, storage and maintenance of the vehicle to be borne by the operator. Application? The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal.
Each report shall be made in a format approved by the registrar and dance, shall be made under the penalties of perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for the officer#8217;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 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 website thesis, intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to dance your 2010, operate which has been confiscated pursuant to personal statement cv, this subparagraph shall be forwarded to dance your, the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the 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 any additional suspension periods arising from the same incident, and as to 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 the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of the merchant of venice essay, chapter 265, and in the absence of any other alcohol related charges pending against dance dissertation said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of personal statement, 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#8217;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#8217;s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on your 2010 behalf of the registrar, a written notification of suspension, in a format approved by the registrar; and. Personal Statement Help Cv? (iii) immediately report action taken under this paragraph to the registrar. Dance Your Dissertation 2010? Each report shall be made in essays, a format approved by the registrar and shall be made under the penalties of perjury by the police officer. Dance Dissertation? Each report shall set forth the space exploration grounds for the officer#8217;s belief that the dance your person arrested has been operating a motor vehicle on any way or place while under the influence of intoxicating liquor and that the person#8217;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 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 the secretary of public safety, that the evocative essays equipment used for the test was regularly serviced and maintained and that the person administering the test had every reason to believe the equipment was functioning properly at the time the test was administered. Each report shall be sent forthwith to dissertation 2010, the registrar along with a copy of the notice of intent to application, suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. Dance Your Dissertation? 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 suspend from a police officer. The license to operate a motor vehicle shall remain suspended until the disposition of the study application offense for dance 2010 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 evocative essays percentage, by weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater and upon the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the driver#8217;s license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of dance your dissertation 2010, paragraph (a) of essays, subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant#8217;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 dance your dissertation 2010 defendant#8217;s blood pursuant to evocative essays, subparagraph (1). Each such report shall be made on a form approved by the registrar and shall be sworn to under the penalties of your dissertation 2010, perjury by such police officer. Website Thesis? Each such report shall set forth the grounds for the officer#8217;s belief that the dance dissertation person arrested had been operating a motor vehicle on personal statement help a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Dance? Such report shall also state that the person was administered such a test or analysis, that the operator administering the exploration 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 public safety, that the dance your 2010 equipment used for such test was regularly serviced and maintained, and that the person administering the abroad application test had every reason to dance 2010, believe that the equipment was functioning properly at essay study abroad application 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 dance your dissertation 2010 the person authorized by him, and space, shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant#8217;s blood was administered. The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to your dissertation, believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in website thesis, any place to which members of the public have a right of access or upon dance dissertation 2010 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 website thesis any one of the said issues in dance, the negative, the registrar shall forthwith reinstate such license, permit or right to of venice essay, operate. Your Dissertation 2010? 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 the determination shall have the right to website thesis, file a petition in the district court for the judicial district in which the offense occurred for judicial review. The filing of a petition for your 2010 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. If the court finds that the essay application department exceeded its constitutional or statutory authority, made an your dissertation, erroneous interpretation of the of venice critical essay law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by dance your the evidence in the record, the court may reverse the registrar#8217;s determination. [ Second paragraph of paragraph (g) of subdivision (1) effective until November 4, 2010. Help? For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of your dissertation, paragraph (f) on the basis of chemical analysis of his breath may within ten days of essay abroad, 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 your dissertation 2010 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 evocative essays, his breath, shows that the percentage, by weight, of alcohol in dance 2010, such person#8217;s blood was less than eight one-hundredths or, relative to the merchant of venice, such person under the dance dissertation age of twenty-one was less than two one-hundredths. Space? 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 dance your age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to operate and essay, shall direct the dance your prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration.
[ Second paragraph of paragraph (g) of subdivision (1) as amended by statement help 2010, 256, Sec. 63 effective November 4, 2010. Dance Your 2010? For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on book christian doctrine the basis of chemical analysis of his breath may within ten days of 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 dissertation 2010, 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 the merchant of venice essay weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the dance your dissertation 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 website thesis age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to dissertation 2010, operate and shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of such restoration. (h) Any person convicted of a violation of 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 glue, may, as part of the 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. Of Venice Critical? 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 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 public might be endangered, or upon a bet or wager or in your dissertation, a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of personal help cv, section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and dance, 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#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in exploration, an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in dance your 2010, an application for registration of a motor vehicle, shall be punished by space essay 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 whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of your dissertation 2010, not less than fifty dollars nor more than five hundred dollars or by imprisonment for personal help not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in dance dissertation, a house of 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 imprisonment; and the merchant of venice, whoever is dance dissertation 2010, found guilty of a third or subsequent offense of statement help cv, such use without authority committed within five years of the earliest of 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 one half years in a house of correction or for not less than two and one half years nor more than five years in dance your 2010, the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for the merchant critical essay a violation of any provision of dance your dissertation, this paragraph if in the judgment of the website thesis court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons. 2010? [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. Website Thesis? 11 effective September 30 2010. Dance Your? For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to which the of venice critical public has a right of access, or any place to which members of the dance 2010 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 public might be endangered, or upon a bet or wager or in book christian dame doctrine series, a race, or whoever operates a motor vehicle for dance your dissertation 2010 the purpose of making a record and thereby violates any provision of evocative essays, 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#8217;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#8217;s permit, or whoever knowingly makes any false statement in dance, 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 evocative essays 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 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 the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by your dissertation a fine of not more than one thousand dollars, or by help cv both such fine and dissertation, imprisonment; and whoever is found guilty of a third or subsequent offense of book christian dame development doctrine series, such use without authority committed within five years of the earliest of 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 one half years in a house of your dissertation 2010, correction or for evocative essays not less than two and your 2010, one half years nor more than five years in statement help, the state prison or by both fine and imprisonment. 2010? A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of this paragraph if in abroad application, the judgment of the 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 dance 2010 a person who, by a court of the commonwealth, 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 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 the General Fund. The assessment shall not be subject to reduction or waiver by the court for personal statement help cv any reason. (a1/2) (1) Whoever operates a motor vehicle upon dance your 2010 any way or in any place to which the public has 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 making known his name, residence and the registration number of essay study abroad application, his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in dance your dissertation 2010, the death of any person, shall be punished by imprisonment for 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 making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to space essay, any person shall, if the injuries result in the death of a person, be punished by imprisonment in dance your, the state prison for not less than two and personal statement, 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 dance your 2010 warden, superintendent or other person in statement cv, 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 your 2010, 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 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 exploration essay file. Dissertation? (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 space essay, any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the dance dissertation 2010 license or right to operate. If it appears by the records of the essays registrar that the person so convicted is the 2010 owner of a motor vehicle or has exclusive control of of venice critical essay, any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of 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 your 2010 right to operate to him, if the essay prosecution has terminated in favor of the defendant. In addition, the registrar may, after an investigation or upon your dissertation 2010 hearing, issue a new license or reinstate the right to the merchant of venice critical essay, operate to a person convicted in dance dissertation, any court for a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of 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 personal statement help date of revocation following any subsequent conviction; (ii) any person convicted of a violation of 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 dance your date of space exploration essay, revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the dance your dissertation 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 essay study abroad application, three years. Notwithstanding the forgoing, a person holding a junior operator#8217;s license who is dance dissertation, convicted of website thesis, 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 dissertation 2010 a first offense or 1 year after the date of revocation following a subsequent conviction within a period of 3 years. The Merchant Of Venice Critical Essay? The registrar, after investigation, may at dissertation 2010 any time rescind the revocation of a license or right to operate revoked because of a conviction of operating a motor vehicle upon any way or in any place to which the public has a right of essay study, access or any place to dance, which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. The provisions of 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 personal statement help the violation of your dissertation 2010, any provision of essay, 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 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. Your Dissertation? If the court or magistrate certifies in writing that he is essay study application, satisfied that the reasons relied upon are sufficient and that the interests of justice require the allowance of the motion, the motion shall be allowed and the certificate shall be filed in dance dissertation, the case.
A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the registrar. Website Thesis? (4) In any prosecution commenced pursuant to 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 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 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. Dance? A Massachusetts DUI OUI jury returned verdicts of guilty on 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#8217;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 essay abroad application, operating to endanger. Before me is the defendant#8217;s motion, under Mass.
R. Crim. P. 25(b)(2), for (a) a required finding of dissertation, not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of operating to endanger. For the reasons that follow, the defendant#8217;s motion is personal, 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 dance dissertation 2010, Ayer, via Route 111, to Groton center. Evan died of of venice critical, his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to endanger, and felony motor vehicle homicide.1. It was the Commonwealth#8217;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 that her truck veered out of your dissertation, 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 book development doctrine in notre 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 influence of an dance your, intoxicating substance (on the of venice critical Commonwealth#8217;s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to dance dissertation, each of these findings is therefore reviewed in turn. A. Evidence of Operating to of venice critical essay, Endanger. No third party witnessed the accident. Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the 2010 Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either expert#8217;s testimony is essays, necessary here, except to 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 your 2010, accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant#8217;s lane of travel, and that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to book dame doctrine essay in notre series, determine, with a reasonable degree of scientific certainty, the location of the dance 2010 impact.
The Commonwealth#8217;s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury#8217;s verdict on this point was adequately supported by the evidence. B. Operating Under the Influence. Essay? The #8220;operating under#8221; 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 #8220;while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. 94C, §1], or the vapors of glue.#8221; 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 #8220;scheduled medications#8221;). 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 your dissertation 2010 scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to study, the #8220;operating under#8221; element was as follows.
1. CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for 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 dance your OUI and vehicular homicide statutes. Even if the defendant were impaired by one or more of these medications, therefore, she would not have been #8220;operating under the influence#8221; within the meaning of these statutes, unless she was also impaired by one or more of the scheduled medications. 2. Testimony of Dr.
Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on August 29 was written by Dr. Andrew Abela. Dr. Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for tooth pain. Evocative Essays? He extracted a lower molar, and gave her the 2010 oxycodone prescription at that time. His practice is to the merchant critical essay, recommend to dance your 2010, 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 #8220;dry socket#8221; three to the merchant, five days after the 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 your dissertation increased risk for dry socket. Website Thesis? 3. Package Warnings. The CVS records included copies of the #8220;monographs#8221; that CVS, when filling a prescription, produces and staples to the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed #8220;USES,#8221; HOW TO USE,#8221; SIDE EFFECTS,#8221; PRECAUTIONS,#8221; DRUG INTERACTIONS,#8221; OVERDOSE,#8221; NOTES,#8221; MISSED DOSE,#8221; and dance 2010, #8220;STORAGE.#8221; Each monograph is website thesis, lengthy (about half of an 8? ? 11 page of fairly small type). 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. #8230; 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. Dance? Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. Exploration Essay? If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness. #8230; 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. Dance Your Dissertation 2010? Tell your doctor immediately if you have any of evocative essays, these unlikely but serious side effects: loss of dance 2010, coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. #8230;. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness such as driving or using heavy machinery. Website Thesis? 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 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 May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital#8217;s psychiatric unit from dance your dissertation then until the the merchant of venice 29th).
She also stated that she had been having trouble sleeping, and that the night before the accident, she had gone to bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth#8217;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 dance your dissertation 2010, a narcotic analgesic, derived from the opium plant and used for moderate to severe pain. Side effects, which can occur in christian dame doctrine essay in notre, 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 your 2010, a benzodiazepine prescribed for essay anxiety and sometimes for dance your dissertation insomnia. Exploration? It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and 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 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 your dissertation 2010, 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. Book Christian Dame Doctrine Essay In Notre? A single dose can affect the patient for up to dance dissertation, 24 hours.
Two milligrams is the abroad application maximum dose normally prescribed, and is a sedating dose. Of the dance 2010 non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed #8220;off label#8221; to control mood disorders. Side effects can include somnolence, fatigue, and study abroad, 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 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 your dissertation, acute symptoms. Space Essay? Both therapeutic and side effects may decrease with prolonged, regular use, but this is dance your, less likely with prolonged #8220;PRN#8221; (as needed) use. The other three medications take longer — 2 to 4 weeks — to be effective, and their side effects normally abate over time. Website Thesis? Dr.
Brower opined, in your, response to hypothetical questions which assumed the book christian doctrine essay in notre Commonwealth#8217;s view of how the accident happened (i.e., that the truck left the roadway for dissertation 2010 the sidewalk), that such things as difficulty keeping a vehicle on book doctrine essay a straight course, delayed reaction time, and reacting to an emergency erratically or at the last minute, are consistent with the effects of the three scheduled drugs. There could be other causes as well (and patients vary in the severity of their reactions to these and other drugs), but any or all of the scheduled drugs are capable of producing these effects. 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#8217;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 dance dissertation 2010, helped the plaintiff out of her truck, testified that the space essay defendant told him she was on multiple medications; that she opened her purse and showed him #8220;quite a few bottles#8221;; 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 aid of 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#8217;s #8220;current medications,#8221; percocet and valium #8220;PRN#8221; (i.e., as needed). This was in response to the question he asks every patient,#8221; What medications are you currently taking?#8221; 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the dance your dissertation 2010 morning of the accident. She stated that she had not driven, or been out of the house, for two weeks prior to the accident (excepting her stay on a locked floor at evocative essays Emerson Hospital). She listed, and dance dissertation, 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 (#8220;I take two#8221;) — and that #8220;If I went without them, I#8217;d be a fruit loop.#8221;5 She took her Effexor shortly before leaving the house the day of the accident. She said that the space packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on your 2010 September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. Evocative Essays? 6. Descriptions of the Defendant#8217;s Affect. Five witnesses testified as to the defendant#8217;s affect, as it bore on the question of possible impairment from drugs. 1. 2010? Blumenthal testified that as far as he could tell, the defendant was not #8220;grossly#8221; affected by drugs or alcohol.
2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and went to see if the 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 directions of the EMTs. 3. Exploration Essay? 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 dance dissertation, respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented #8220;times 3#8243; (i.e., oriented to person, place and essay, time).
His bedside neurological exam showed no focal deficits and no signs of intoxication; #8220;There was nothing about her that made me think she was under the influence.#8221; 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 these substances in a blood or urine sample would have been uninformative).6. 5. Your 2010? On the christian development essay great in notre other hand, Officer Hatch, a Groton Police officer (since retired) who was among the dance your first responders, testified that he saw the defendant at book christian dame in notre 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#8221; nothing I could put my finger on,#8221; but he did notice that she was unusually subdued, not #8220;bubbly#8221; as she normally was.7 He also testified that the defendant told him at your dissertation 2010 the scene that she had swerved into the other lane (leftwards) to avoid the website thesis bicyclist. He went to the hospital where she was taken, where she said she had swerved to dance dissertation 2010, 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#8217;s erratic driving the day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant#8217;s vehicle left her lane of travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the book development series pavement was dry; the dance 2010 weather was clear; she was heading north and not into essays, 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 your dissertation 2010, avoid the essay application bicyclist. There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and dance your 2010, two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and personal statement help cv, Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend#8217;s house on the way). 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 dance your dissertation, the truck approached one another at a curve in the road, the truck swerved into their lane and critical, beyond, into the dirt by the (wrong) side of the road.
It did not slow down, and was in dance dissertation 2010, their lane for several seconds before veering back into the correct lane of travel. The Merchant Of Venice Critical? 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 dance only significant event on her drive from Ayer to essay application, Groton was that her sandal #8220;fell off once#8221; in the general area of the incident described by your dissertation 2010 Krusen and Curcio; that she might have swerved slightly; but #8220;then that was fine.#8221; Both men generally described the truck and personal, driver,8 and both, at the request of the Groton police, viewed the truck after the accident at your the garage where it had been towed. Study Abroad Application? Krusen (the driver) told the police he did not think the truck in your dissertation 2010, the garage was the essays one he had seen on Groton School Road. Curcio, on the hand, testified that he was positive that it was the dance dissertation 2010 same truck. The time, place, and descriptions of the encounter were such that the essay jury would have been warranted in concluding that the driver was the defendant, and dance your, that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for a directed finding at the close of the Commonwealth#8217;s case.
At that point, as required, I reviewed #8220;whether the evidence presented up to the time of a motion for book dame essay great in notre a directed verdict [was] legally sufficient to permit the submission of the dance dissertation case to the #8230; jury, to decide the innocence or guilt of the accused.#8221; Commonwealth v. Latimore, 378 Mass. Essay Study? 671, 676 (1979). I determined that although the evidence that the defendant was under the influence of 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 look again at whether the Commonwealth#8217;s case was sufficient, and (b) #8220;to determine whether the Commonwealth#8217;s position as to proof had deteriorated since it had closed its case.#8221; Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). 2010? Both determinations require that I view the evidence in the light most favorable to the Commonwealth.
Latimore, 378 Mass. at 677-78; Commonwealth v. The Merchant Of Venice? Torres, 24 Mass. App. Ct. 317, 323-24 (1987). #8220;[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 dance dissertation 2010 reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. #8230; [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 crime beyond a reasonable doubt.#8221; Thus, to sustain the denial of a directed verdict, it is not enough #8230; to find that there was some record evidence, however slight, to support each essential element of the christian doctrine great in notre series 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. Your 2010? 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 study application, appellate review to trial judge#8217;s review of motion for dance your dissertation 2010 directed finding). As noted above, in the discussion of the essays facts, Trooper Alvino#8217;s testimony placed the defendant#8217;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 2010, road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to endanger. See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (#8220;evidence that the 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#8221; was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of the merchant critical essay, vehicular homicide); Commonwealth v. Dance Your Dissertation 2010? Vartanian, 251 Mass. 355, 358 (1925) (presence of exploration essay, people is a relevant factor when considering whether defendant operated vehicle to endanger).
Eyewitness evidence as to dance dissertation 2010, the operation of the evocative essays truck before the accident was not required. See, e.g., Commonwealth v. Your? Gordon, 389 Mass. 351, 358 (1983). The evidence concerning operating under the influence presented a closer case, but still one presentable to of venice critical, the jury. To succeed on this element, the dance dissertation Commonwealth was required to prove beyond a reasonable doubt that one or more of the evocative scheduled medications, through its effect on the defendant#8217;s #8220;judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies,#8221; diminished her #8220;ability to operate a motor vehicle safely.#8221;10 Commonwealth v. Connolly, 394 Mass.
169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the dance defendant#8217;s diminished ability to space essay, drive safely, so long as is was a contributor. #8220;It is enough if the defendant#8217;s capacity to operate a motor vehicle is diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to dance your dissertation, that diminished capacity.#8221; 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 thus had access to the three controlled medications; 2. That her pattern of space exploration essay, filling the dance dissertation 2010 prescriptions for diazepam and abroad application, (more especially) lorazepam indicated regular consumption; 3. That the dance your 2010 recency of her filling prescriptions for 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 essay study abroad, August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to have affected her on September 1; 4. That lorazepam, even if consumed the night before, would still have affected her the day of the accident; 5. Dance Dissertation? That the steadily diminishing list of medications given by book dame doctrine essay in notre the plaintiff following the accident — and your dissertation 2010, the omission of the three controlled medications in book christian doctrine essay, her statements to the police — indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the evidence of the defendant#8217;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 intoxication; 7. That the fact that the dance your defendant was under the essays 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#8217;s affect after the accident to detect impairment; 8. That the description of the defendant#8217;s affect by Officer Hatch, who had known her for most of her life, was consistent with the your dissertation 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. Website Thesis? 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 dance defendant had taken any of the controlled medications recently enough to be impaired by them, and it lacked direct evidence of what concentrations she had of any of them.
Even the direct evidence of signs of intoxication in the defendant#8217;s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the essay jury had enough to your 2010, conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and website thesis, regularly; that she appreciated the dangers of the controlled medications, both medically and dance your, (by 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 website thesis, guilt cannot be left to conjecture or surmise. #8230; However, circumstantial evidence is dance dissertation 2010, competent to establish guilt beyond a reasonable doubt. An inference drawn from circumstantial evidence #8220;need only be reasonable and of venice critical, possible; it need not be necessary or inescapable.#8221; Moreover, the evidence and the permissible inferences therefrom need only dissertation, be sufficient to persuade #8220;minds of ordinary intelligence and sagacity#8221; of the space essay defendant#8217;s guilt. Fact finders are not #8220;required to divorce themselves of dance 2010, common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in statement help cv, the light of their experience as to the natural inclinations of human beings.#8221; To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to dance your dissertation, resolve the 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 exploration, Jury. If the motion [for a required finding of not guilty] is denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is dissertation, discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the help cv judge may on motion set aside the dance your dissertation 2010 verdict and order a new trial, or order the entry of essay, a finding of dissertation, not guilty, or order the entry of a finding of guilty of christian essay great in notre series, any offense included in dance 2010, the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. c. 278, §11. Study Abroad Application? 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 dissertation, review so-called capital cases — convictions of murder in essays, the first degree — under G.L. c. 278, § 33E. The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to dissertation, 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 essay study jury#8217;s verdict. #8220;[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury#8217;s verdict.#8221; The judge#8217;s option to dance, reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial. The judge#8217;s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the the merchant critical jury, the judge#8217;s own error, or #8230; the interaction of several causes. Commonwealth v. Woodward, 427 Mass. Dance Your Dissertation 2010? 659, 666-67 (1998). As the trial judge in Woodward put it, a judge#8217;s exercise of the Rule#8217;s authority to personal, reduce a verdict is less constrained than when considering a motion to dance dissertation 2010, set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal. The judge, formerly only an statement help cv, umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the level of guilt #8230;. The facts, as well as the 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 dance dissertation 2010 Woodward opinion, that #8220;[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.#8221; Id. at 667, citing Commonwealth v. Keough, 385 Mass. 314, 321 (1982) (trial judge #8220;should not sit as a `second jury#8217;#8221;); see also Commonwealth v. Carter, 423 Mass.
506, 512 (1996) (judge hearing motion to reduce verdict #8220;is not to play the role of thirteenth juror#8221; or to #8220;second guess the jury#8221;). Perhaps not surprisingly, it appears that the verdict-reduction power is essay, exercised most frequently — as in dance, Woodward — to walk the #8220;fine line[s]#8221; between the forms of malice required for the various degrees of homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the essay abroad 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 operating to endanger): 1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the dance your dissertation 2010 defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the of venice critical defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the your dissertation 2010 defendant frames, in space, part, as an argument for #8220;involuntary intoxication#8221;). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the dance your dissertation 2010 defendant characterizes it, #8220;slim,#8221; at least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of help cv, intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to dance your dissertation 2010, discount. Perhaps the book dame development essay great strongest single piece of your 2010, evidence came, not from medicine or from pharmacology, but from physics and accident reconstruction.
If one accepts the critical essay conclusion of Trooper Alvino that the truck was on the sidewalk at dance your 2010 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 the evidence is that of intoxication. If one also accepts the testimony of Krusen and Curcio (including the identification furnished by the latter) — as the statement help cv jury were also entitled to do — this showed a chain of events of some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone — though even this is undercut by the defendant#8217;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 your, the course of several minutes and several miles. Space Exploration? When combined with evidence of the defendant#8217;s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch#8217;s description of dissertation 2010, 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 of venice essay, order to navigate the murky — and notoriously difficult, even on a jurisprudential level — world of human intent in dance dissertation, homicide cases. These are cases in website thesis, which the law, for reasons of social utility and fairness, requires a jury#8217;s pronouncement upon dissertation 2010 what many would argue is inherently unknowable. Evocative Essays? Some room for dance your 2010 reflection and correction is necessary, in personal statement help, all cases but especially in these.
In this case, however, the central issue — whether or not the defendant#8217;s ability to perform a complex task such as driving was impaired by your dissertation 2010 a controlled medication — was an ascertainable fact. Its determination on the merchant of venice critical essay 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 2010 jury. Exploration? That evidence, if necessarily circumstantial and dissertation, incomplete, was nonetheless substantial in study, its quantity and its overall quality. Trial presentations for 2010 both sides were excellent. I do not think the jury#8217;s verdict represented a miscarriage of justice. The defendant#8217;s final argument — that medications taken as prescribed cannot be the basis of an of venice, 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 2010 statutes, nor the conviction in this case, criminalizes the defendant#8217;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 personal other, enumerated substances. Dissertation 2010? The OUI and vehicular homicide statutes on their face make no distinction between drug therapy and evocative essays, drug abuse. Dance 2010? 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). The statute aims to keep the impaired driver off the of venice critical essay 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 defendant#8217;s Motion for Relief Pursuant to Mass. R. Crim. P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the defendant was operating under the influence, and dance dissertation 2010, that she was operating to endanger(and that her operation caused the death of another). Space Exploration? Misdemeanor vehicular homicide requires a finding either of your dissertation 2010, operating under or operating to endanger, resulting in death.
Both operating under and operating to endanger are therefore lesser included offenses in the merchant of venice critical essay, relation to felony vehicular homicide. 2. Dance Your? The week that trial began I held an evidentiary hearing, over study application, two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. 54 (1994), of Trooper Alvino#8217;s testimony. It was my assessment that the dance your dissertation 2010 scientific methods employed, and their application to this case, were sufficiently reliable to essay study, warrant admission of Trooper Alvino#8217;s testimony. 3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth#8217;s request, that these are #8220;depressants,#8221; because they appear on the attorney general#8217;s list of controlled substances, incorporated by reference into c. 94C, §1 and thereby into c. 90, §§24(a) and 24G(a). Your? Oxycodone#8217;s status as a narcotic was established by the testimony of the Commonwealth#8217;s medical expert, Dr.
Brower. 4. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications. Christian Development Doctrine Great Series? 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 dance dissertation first caused her to feel #8220;out of it#8221; and to sleep a lot, but that #8220;now they have no effect on me, and I#8217;m fine.#8221; In testimony that I excluded (after first asking if the defendant wished to waive the privilege which she had successfully asserted to exclude all prescribing information and essay, warnings given by her psychotherapists, and being advised that she did not), she added that #8220;the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday #8230; and he said it was fine.
He said they have no effect on your driving.#8221; 6. Dr. Your Dissertation? Balser and the police witnesses were in agreement that the decision whether or not to test for intoxication is a medical one, made by the physician and not under the direction of law enforcement. 7. This description of the defendant#8217;s affect could be interpreted as at least generally consistent with the essay study abroad description, given by Dr. Brower, of the calming and sedating effects of dance 2010, lorazepam and diazepam. The jury might also have concluded, reasonably, that the effects of 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. Website Thesis? Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and dance 2010, difficult to website thesis, describe beyond a #8220;very dark green with something mixed in#8221;; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking #8220;intense.#8221; 9. 2010? The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. Evocative? 10.
At the defendant#8217;s request, and over the Commonwealth#8217;s energetically pressed objection, I gave the jury a #8220;specific unanimity#8221; instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the dance 2010 defendant#8217;s ability to drive. #8220;[W]hen the Commonwealth introduces at trial evidence of book christian dame essay, alternate incidents that could support the charge against the defendant, the your jury must unanimously agree on which specific act constitutes the offense charged.#8221; 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. Essay? 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#8217;s identification of the truck, and attributed Krusen#8217;s failure to identify it to dance 2010, the fact that he had been the of venice essay driver, and therefore, preoccupied. 12. The SJC noted in Woodward, #8220;Since 1979, the dance your dissertation 2010 Commonwealth has appealed verdict reductions in only ten cases, of statement, which seven were affirmed.#8221; 427 Mass. at 667. Eight of dance your 2010, 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. Website Thesis? 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 dance your dissertation 2010 the Commonwealth. Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ. The defendant appeals from the revocation of his probation, based on evocative essays 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 your dissertation, warrant a finding of study abroad application, guilty on a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and your dissertation, placed the space essay defendant under the supervision of a probation officer on 2010 terms that, among others, required that he #8220;obey all court orders and local, [S]tate and [F]ederal laws#8221; 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 website thesis, new charges being lodged against the defendant in dance dissertation 2010, Falmouth District Court for operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. The new offense triggered the issuance of a written notice of a probation violation from the Brighton District Court, stating the defendant was not in compliance with the terms of his probation because of the of venice critical essay new complaint. After a hearing on March 3, 2000, the judge found that the defendant had violated the terms of his probation on the basis of his admission to the Mashpee police during his arrest that he had driven his car earlier in 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 correction sentence.2. On appeal, the defendant argues that the dissertation entry of a guilty finding and abroad application, the order modifying the your dissertation terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from those for which he had received written notification; (2) the website thesis defendant#8217;s admission was unreliable, because the police officer who testified was unsure of the exact statement, and dance your, 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 (4) his admission was not the product of voluntary actions, because at 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 website thesis 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 order to avoid being hit by dance your 2010 a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to space, see who was driving or how many people were in the vehicle. Dance Your Dissertation? He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Evocative Essays? Read found it parked at the side of the road. Read observed the defendant standing toward the back of the vehicle, on your 2010 the driver#8217;s side. Read stopped, exited, and walked toward the defendant.
As Read approached, the website thesis 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#8217;s son-in-law, emerged from the 2010 woods by the side of the road, where he apparently had been urinating. Space Essay? Read asked both the defendant and Crosby who was driving; neither responded. Read observed food and dissertation 2010, a cooler with numerous beers in it in the rear of the vehicle. Read determined that the defendant was the owner of the website thesis vehicle. Read determined that both the your dissertation 2010 defendant and Crosby were under the influence of alcohol, and placed both in protective custody. Officer Paul Coronella was called and arrived at the scene.
The defendant was placed in the rear of Coronella#8217;s police car and Crosby was placed in essay application, the rear of dance, Read#8217;s police car, both for transportation to the police station. Personal? En route to the station, Crosby had a conversation with Read in dance your 2010, 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 driver. Dame In Notre Series? Read obtained a signed, written statement from dance your 2010 Crosby that the defendant was the driver. After conducting sobriety tests, which he said the defendant failed, Coronella placed the defendant under arrest for space exploration operating the motor vehicle on Route 130 while under the influence of 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 contents of the defendant#8217;s vehicle at dance your 2010 the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby #8220;exhibited extreme symptoms of intoxication.#8221; Coronella#8217;s report of the booking procedure stated that the defendant was read and essay abroad, 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#8217;s and Read#8217;s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella#8217;s and Read#8217;s reports explain that the dance dissertation 2010 defendant answered that he drove from his house in Brockton to his son-in-law#8217;s, Crosby#8217;s, home in the merchant of venice, East Bridgewater. Crosby then drove the defendant#8217;s vehicle to dance your dissertation, 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 space exploration, Crosby#8217;s house, but acknowledged that it was #8220;possible#8221; the defendant had made such a comment. The judge did not credit Crosby#8217;s statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Rather, the judge credited the defendant#8217;s admission, as reported by Coronella and Read, that he had driven from his house to Crosby#8217;s house, the your dissertation first leg of the trip to the football game.4. On these facts, the personal statement cv defendant raises several issues implicating due process; we find no merit to his contentions and dance your dissertation 2010, 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 the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from his home to Crosby#8217;s home under a suspended license. The issue was first raised in the defendant#8217;s second motion for abroad reconsideration, which was denied by the judge who had found a probation violation. We agree with the dissertation defendant that the written notice was limited on its face to the two charges filed in connection with the incident that occurred on Route 130, and that the 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 lack of notice, the essay application earlier operation cannot form the basis of the instant revocation. We disagree.6. While there can be no doubt that written notice of the claimed violations are included among the #8220;minimum requirements of due process,#8221; Commonwealth v. Durling, 407 Mass.
108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Ibid. Dissertation? Flexibility is essay, 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 deal expeditiously with a violation of that opportunity. See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Sheridan, 51 Mass.App.Ct. 74, 76-77, 743 N.E.2d 856 (2001).
A probation revocation is not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at your dissertation 112, 551 N.E.2d 1193. In this case, the written notice did not specifically state the basis upon essay study abroad which the judge based the revocation. The defendant#8217;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 dissertation 2010 the notice of development essay in notre series, probation violation. In any event, assuming that the failure to specifically enumerate the misconduct on the face of the your 2010 notice constitutes error, the issue remains whether the christian great series defendant was afforded due process. We conclude that the actions of your dissertation 2010, defense counsel in introducing the issue at the inception of the hearing, and in of venice critical essay, vigorously cross-examining the 2010 officer on the issue, amply support the conclusion that any error here was harmless. For example, at evocative the opening of the hearing, counsel indicated that the defendant#8217;s principal concern was with the then-pending operating under the influence charge. With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation.
After discussion about a possible disposition, counsel told the dance your judge the following: #8220;There is a second matter of essay, operating after a suspended license. And there are two incidents of operation, one of which I understand my client is accused of admitting that he did. I#8217;m not saying that is his position, but in the police report it indicates something to that effect. #8220;If we could just go forward with regard to that issue and not stipulate to the OUI, it would still be a technical violation.#8221; (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the officer with regard to the defendant#8217;s statement that he had driven the dissertation 2010 car earlier in the day, and christian dame in notre, went so far as to elicit a statement from the officer that the defendant might also have told him that a family member, rather than the defendant, drove the car to Crosby#8217;s house. Counsel was amply prepared at dissertation the start of the hearing to website thesis, consider the issue of the defendant#8217;s admitting to your dissertation, the first occasion of driving after suspension of his license. On the facts of this case, the defendant is book christian dame development essay in notre series, unable to demonstrate prejudice resulting from any lack of notice, and dance your 2010, this failure to show prejudice is fatal to his claim of error. See Delisle v. Commonwealth, 416 Mass. 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. 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 warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of evocative essays, intoxication, the statement was not made voluntarily for 2010 the purposes of the space essay Fifth and Fourteenth Amendments to dance your 2010, the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and therefore should not have been considered; and (c) the essay abroad application alleged admission was unreliable and insufficient to dance your dissertation 2010, form the basis of the book christian development essay great in notre probation surrender, since it lacked corroborative evidence and was contradicted by information contained in your dissertation, the police reports. We disagree with all three contentions. (a) Miranda issue. Personal Cv? Contrary to the defendant#8217;s contention, the evidence adduced at dance 2010 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#8217;s testimony at the hearing supports this version of book christian doctrine in notre series, events.8. Dissertation? Moreover, even were we to evocative, agree that the defendant#8217;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 evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. Your 2010? 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by study abroad application a defendant were properly suppressed at trial as having been obtained in violation of the defendant#8217;s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the defendant and Crosby for dance your reasons of protective custody, and the ensuing questioning, sobriety tests, and space, ultimate charge were to prosecute the incident of dance your 2010, driving under the influence, the exclusion at essay a probation revocation hearing of the defendant#8217;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 statement he made at 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 his Fifth and Fourteenth Amendment due process rights. The defendant#8217;s claim of intoxication, standing alone, is dance your, insufficient to establish that his statement was involuntary. See Commonwealth v. 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 book christian dame development in notre 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 dance your 2010, obliged to make an affirmative finding on the voluntariness of dame doctrine essay great in notre, those admissions under the your dissertation Fifth and Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. Essay Application? Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999).
See also Commonwealth v. Mello, 420 Mass. Your? 375, 383, 649 N.E.2d 1106 (1995) (#8220;special care is taken to review the issue of voluntariness where the defendant claims to have been under the influence of drugs or alcohol#8221;). Such special care with regard to intoxication is necessary; the United States Supreme Court has noted, #8220;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#8217; calculus.#8221; 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 exploration essay, determine admissibility need take place on the bases of dance, 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 evocative essays, police harassment, or at 2010 least police knowledge of the petitioner#8217;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) (#8220;an element of essay study, constancy should be present in the type of harassment necessary to invoke the exclusionary rule#8230;. [W]here harassment may be a singular act, at least some irregularity in the conduct of the dance your 2010 police officials must be present#8221;).
While the police officers were aware of Simon#8217;s probationary status, only. Help Cv? two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. See also note 9, supra. Further, the dissertation 2010 police had already placed the defendant under arrest for of venice critical 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 dance dissertation, cases cited (#8220;The Federal courts have concluded that, in most instances, a police officer is book development doctrine in notre series, primarily interested in obtaining evidence with which to dance 2010, convict a defendant. Revocation of probation is generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from such proceedings is book dame development in notre series, likely to have only a marginal additional deterrent effect on illegal police misconduct#8221;).
In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the #8220;voluntary#8221; waiver of the personal right against self-incrimination protected by the Miranda warnings on the one hand, and the due process-based #8220;voluntariness#8221; of a statement protected by the Fifth and Fourteenth Amendments on dance 2010 the other hand. Of Venice Essay? See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. Similarly, the Supreme Court #8220;cautioned against expanding `currently applicable exclusionary rules,#8217;#8221; 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. 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 dance, these circumstances. #8220;In Federal law and in book doctrine great in notre series, most jurisdictions, the exclusionary rule does not apply as a matter of course to dance 2010, probation revocation proceedings because the `application of the exclusionary rule is essay, restricted to those areas where its remedial objectives are thought most efficaciously served.#8217; See Commonwealth v. 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).#8221; Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. Your? #8220;`Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and doctrine in notre series, continues to pose a threat to the public.#8217; Commonwealth v. Vincente, supra at dissertation 280, 540 N.E.2d 669.
Accordingly, the State has an overwhelming interest in being able to return an individual to imprisonment without the burden of a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of his [or her probation].#8217; Morrissey [v. Brewer, 408 U.S. 471,] 483, 92 S.Ct. , 2601[, 33 L.Ed.2d 484 (1972)]. The Merchant Of Venice Critical? We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.#8221; Commonwealth v. Olsen, supra at 2010 493-494, 541 N.E.2d 1003. Book Dame Development Doctrine Essay Great? Thus, we conclude that the exclusionary rule does not render the defendant#8217;s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is no evidence that the statement was the product of police harassment or the dance your result of a police focus to obtain evidence specifically for a probation revocation hearing. (c) Reliability of the admission.
Simon finally argues that the statement, that he operated the vehicle from his home to cv, Crosby#8217;s home that morning, is dissertation, insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in the hearing. Dame Development In Notre? Although a probation revocation hearing is not a criminal trial, and dance your dissertation 2010, the defendant need not be given the #8220;full panoply of constitutional protections,#8221; due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Application? 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 #8220;hearing officer specifically finds good cause for not allowing confrontation.#8221; 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 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 your, corroborate the personal statement help defendant#8217;s statement. It is undisputed that the two went to the football game in the defendant#8217;s car. The defendant lived a distance from Crosby#8217;s home, and dance dissertation, the two were returning there when they were stopped by the police. No other explanation was offered of how the defendant and his vehicle got from the merchant essay his home to Crosby#8217;s.11 The cases cited by the defendant in his brief, Commonwealth v. Forde, 392 Mass. 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 fact necessary for an admission in the context of dance your dissertation 2010, a hearing on statement help surrender. As to dance your 2010, the claim that the dame essay in notre hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to driving earlier in the day, and that he had made a note of dance your dissertation, it in his police report. Read was present at the hearing and subject to study application, cross-examination. The statement was an admission against interest made by the defendant to police officers at dissertation a time when the officers were investigating him for another alleged crime, operating under the influence.
The defendant, though present in 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. Space Exploration Essay? 1. 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. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of dissertation, 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 help arrest indicate a somewhat different answer to Read#8217;s initial questions. Any variance is not material to our decision.
4. Dance Your Dissertation 2010? At the conclusion of the hearing, the essays judge unequivocally stated that he did not credit Crosby#8217;s statement. Dissertation? In his written findings, the critical judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on your dissertation 2010 which he relied in making the finding included #8220;Mashpee police reports#8221;; #8220;Statement of Kevin Crosby#8221;; #8220;Mashpee P.O. John Read#8221;; #8220;Breath test on D.#8221; Given the written finding that revocation was based on #8220;Operating motor vehicle while suspended,#8221; and the judge#8217;s unequivocal statement that he was not relying on Crosby#8217;s statement, we adopt the view that the cv revocation was based on the defendant#8217;s admission that he had been operating the vehicle earlier that day. Both the Commonwealth and the defendant adopt that position in this appeal. 5. With respect to the alleged violations, the notice stated in your dissertation, full: #8220;You are hereby notified of the following alleged violation(s) of the christian development doctrine essay in notre probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. Dissertation? # 0089CR00009B op. after susp. Christian Dame Development Doctrine Essay Series? lic.#8221; 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in your 2010, his findings that he did not rely on Crosby#8217;s statement that the defendant was driving, there is ample additional circumstantial evidence to evocative, tie the defendant to 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#8217;s arguments in your 2010, this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. Essay? 8. Dance Your? Coronella#8217;s report states in pertinent part: #8220;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 exploration essay, stated that he wanted to dissertation 2010, take the breath test. [The defendant] was given the test and the results were as follows#8230;. [The defendant] was again asked how he got to the #8230; game.
He stated that he drove from his house in Brockton to Crosby home in space exploration essay, East Bridgewater, picked up Crosby and dance dissertation 2010, then Crosby drove his vehicle to the game.#8221; 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 inadmissible where the defendant suffered harassment; (3) the book christian doctrine essay great in notre Second Circuit applies the exclusionary rule where the your dissertation probation officer is aware of the target#8217;s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit #8220;stands alone#8221; in excluding all evidence obtained by of venice critical 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 your dissertation, Evidence Obtained Through Unreasonable Search and 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. The Merchant Of Venice Critical? 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer#8217;s knowledge of a probationer#8217;s status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the your dissertation 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#8217;s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to christian development essay in notre series, the effect that a family member had driven to dance your dissertation 2010, Crosby#8217;s. Any determination of the weight and credibility of Read#8217;s testimony was for the judge, and the contradiction was not so egregious as to cause us to conclude that the essay abroad application 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 dance dissertation a sobriety checkpoint, the cv trooper, although he had made no observations of the manner in dance dissertation 2010, which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests.
76 Mass.App.Ct. 908. Cheryl A. BAZINET. Appeals Court of Massachusetts. James M. Milligan, Jr., Norwell, for the defendant. Michelle R. Website Thesis? King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in dance, the town of the merchant of venice critical, Auburn on July 22, 2007. A State trooper working the your 2010 checkpoint spoke with her and detected an odor of critical essay, alcohol. Consequently, the 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 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 dissertation ?a strong odor of an intoxicating beverage on her breath as she spoke.? Bazinet consented to a breath test which revealed an alcohol level greater than .08%, and evocative, she was charged with operating under the influence. See G.L. c. 90, ? 24(1)( a )(1). Before trial, Bazinet moved to dismiss the your dissertation 2010 complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements. Personal Help Cv? Before hearing the motion, a judge of the dance 2010 District Court reported the case for an answer to two questions of law he said arose frequently in the District Court. Study Application? See Mass.R.Crim.P.
34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991).
The questions are these: ?1. 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 your dissertation 2010, 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 space essay, further detain an dissertation 2010, operator for further testing? ?2. Is the Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. Evocative Essays? July 21, 2007 through the Division Commander#8217;s Order (06-DFS,056),[ constitutionally valid??
The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Dance Your Dissertation? Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in essay study abroad, 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 the officer in dance, 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 affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at exploration essay 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the operator #8230; is committing #8230; an OUI violation.? In Murphy, the dissertation troop commander#8217;s order, like the troop commander#8217;s order in this case, stated that further screening after the initial stop ?should be made? if the essay study abroad application 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 alcohol? was one of the dance your dissertation 2010 ?clues of impaired operation? for which the screening officers were to essays, check and which, if observed, would provide a basis for further screening and investigation. Your 2010? Id. at study abroad 320, 328, 910 N.E.2d 281.2 The court#8217;s judgment in that regard is consistent with judgments made by courts in other States that have considered similar questions.
See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to dance your, a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the essays motorist#8217;s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of dance your dissertation 2010, 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. 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 the merchant of venice critical influence?). Turning to question two, the opinion in dance dissertation 2010, Murphy did not consider the space Division Commander#8217;s Order 07-DFS-056, which is your dissertation 2010, designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by exploration essay alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by dance your dissertation General Order TRF-15 and by evocative operational instructions contained in a letter from the troop commander to the officer in charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and the operational instructions are, in all material respects, identical to 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 kind of discretionary enforcement that in other cases has been found constitutionally wanting. Your Dissertation? See, e.g., Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989).
In light of the foregoing, the answer to reported questions one and space essay, two is dance your dissertation 2010, ?yes.? 1. This appears to be a typographical error. The Division Commander#8217;s Order included in the record appendix is website thesis, numbered ?07-DFS-56.? 2. The court#8217;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 operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Your? 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 plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. We think that nothing of dame development series, consequence flows from the omission. 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). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the dance your facts of the case or the essays panel#8217;s decisional rationale. Moreover, rule 1:28 decisions are not circulated to dance your dissertation 2010, the entire court and, therefore, represent only the views of the panel that decided the case. The Merchant Of Venice? 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. Dissertation 2010? 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 study application 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 dissertation day following the rendition of the jury#8217;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 evocative essays, OUI, fourth offense, G. L. c. 90, § 24(1)(a)(1), sixth par. On the your dissertation same day, the defendant pleaded guilty to essays, the charge of OUI after suspension or revocation of dissertation 2010, her driver#8217;s license for prior conviction of OUI, G. L. Essays? c. 90, § 23. Upon the convictions for OUI fourth, the judge sentenced the defendant to four and one-half to dance dissertation, five years#8217; confinement at State prison; upon the conviction for operation after suspension or revocation by reason of prior OUI conviction, the judge imposed a sentence of two and one-half years#8217; 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 State prison. The defendant has appealed upon two grounds: (1) that the judge failed to personal cv, follow appropriate procedure for determination of the exposure of members of the jury to prejudicial publicity during the course of the trial; and (2) that the dissertation judge improperly exercised personal feelings, rather than objective criteria, in space essay, the determination of the sentences.
For the dissertation following reasons, we reject the defendant#8217;s appellate contentions and affirm the convictions and the sentences. Factual background. The evidence permitted the website thesis jury to find the following facts. On the afternoon of January 26, 2008, the defendant consumed four or five beers at her home in dance your, Lynn between 2:45 P. M. and 6:00 P. M. At about 6:00 P. M., she left the space house in order to purchase take-home food from a delicatessen in the city. She took with her an additional can of beer, opened it, and put it in her handbag in the car. Dance Your Dissertation 2010? 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 across two more lanes, so as to drive up to and against the front door of a restaurant (not the restaurant to which she was headed for space essay purchase of food). The impact of travel over the island and dance your dissertation 2010, 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 website thesis, put the car in park gear; he did so and 2010, turned off the ignition. Evocative Essays? He noticed that her speech was slow and that an odor of alcohol was in 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. Dance Dissertation? He saw the development doctrine great series open beer can inside the automobile.
He formed the dance your dissertation 2010 opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and the merchant, testimony, the dance your dissertation Lynn Item newspaper published a morning article about the case. The story carried the headline, #8216;Trial begins for Lynn mom charged with 5th OUI.#8217; The article stated that she had incurred three #8216;drunken driving#8217; convictions during the essay application 1990#8242;s and dissertation, a fourth in 2004. The article stated also that she #8216;blew a.15 alcohol blood level when arrested#8217; for study application 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 2010 jury entered the courtroom, the judge addressed the essay abroad following question to them. #8216;Has any member of the dance your dissertation jury read, seen, heard or overheard anything from any source about study abroad application any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in dance, any way as a fair and impartial juror? Nobody#8217;s raising their hand.#8217; He added a second question. #8216;Has anybody seen or heard anything about doctrine essay great series any publicity from the news media about this case? Please raise your hand if there is anyanything you#8217;ve heard at all, even the tiniest thing. Okay, nobody is raising their hand. Okay.
All right, so we will resume with the trial.#8217; Defense counsel did not object to the judge#8217;s treatment of the issue of exposure to prejudicial publicity by these questions. Later that day, after the close of the your dissertation 2010 evidence and in the course of final instructions to the jury, the judge reminded the jury at three points that they must base their verdict exclusively upon statement cv the evidence comprised of testimony and exhibits received in the courtroom. Dissertation 2010? Again, defense counsel had no objections to evocative, the pertinent portions of the instruction. Your? After the return of the jury verdicts, the evocative finding of the bench trial, and dance, the submission of the plea of guilty to operating after suspension or revocation for website thesis prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. #8216;This is a sad case. I understand that I have a limited amount of information about what happened and about the [d]efendant, but it#8217;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 probablyit#8217;s not hard to 2010, see that she#8217;s probably had a difficult life; I am sensitive to website thesis, these things. But the sentence I#8217;m going to impose is necessary, in my view.#8217; The judge then specified the dance your dissertation 2010 sentence for each offense. At the conclusion of his announcement of the respective sentences, he made the following one-sentence statement. #8216;I assume it#8217;s obvious what my feelings are about the merchant of venice why this sentence is dance dissertation 2010, required.#8217; The remark brought no objection. On the same day, the personal statement help cv judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form.
In the appropriate space for explanation of the dissertation 2010 departure from the guidelines, he wrote, #8216;Upward departure because of the development in notre series egregious nature of the offenses, surrounding circumstances and prior record.#8217; Newspaper article. On appeal and for dissertation 2010 the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to essay application, the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant#8217;s prior OUI convictions. Because the defendant lodged no objection to the judge#8217;s preventive or curative efforts at dance your the time of trial, we review this argument under the standard of substantial risk of a miscarriage of justice. We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel#8217;s failure to object or to the merchant of venice essay, raise a claim of dance your dissertation 2010, 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#8217;s management of the issue.
The defendant relies upon the case of of venice essay, Commonwealth v. Jackson, 376 Mass. Dance Your 2010? 790, 800-801 (1978). The court in book dame development essay great in notre series, that instance set out the dance your 2010 following standard operating procedure for instances of discovery of potentially prejudicial publicity during the course of of venice, trial. #8216;If the judge finds that the your dissertation 2010 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 dame development essay great series material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror#8217;s exposure to the material and its effects on the juror#8217;s ability to render an impartial verdict#8217; (emphasis supplied). The thrust of the defendant#8217;s argument here is that the judge had a duty, not an option, to conduct individual voir dire questioning of the jurors.
As the governing passage of the dance your dissertation 2010 Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the judge has no further duty to carry out individual questioning. Consequently, the judge here complied with the standard of the Jackson rule. Website Thesis? In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judge#8217;s continuation into individual interrogation of 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 more serious as a result of the evolution of Internet technology. Both doctrinally and practically the judge committed no error in these circumstances. 1. Sentencing. The defendant argues that the judge#8217;s reference to dance, #8216;feelings#8217; about the imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by case law, particularly the case of study abroad application, Commonwealth v. Dance Dissertation? Mills, 436 Mass.
387, 399-402 (2002). That decision emphasizes, #8216;A trial judge must be ever vigilant to website thesis, make certain that his personal and private beliefs do not interfere with his judicial role and transform it from that of 2010, impartial arbiter.#8217; Id. at 401. The defendant characterizes the reference to #8216;feelings#8217; as a forbidden indulgence of #8216;personal and essays, private beliefs.#8217; The judge#8217;s fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in any of the decisions cited by the Mills discussion. We view the reference to #8216;feelings#8217; in the setting of the judge#8217;s entire remarks about sentencing. Dance Your 2010? In that light, it reflects reasons and not emotion. He commented that he viewed the essay application case as a #8216;sad#8217; one. Since it involved no personal injuries or casualty, his reference to its #8216;sad#8217; character alluded to your 2010, the fate of the defendant. He observed that she may well have had a hard life.
He observed also that he was #8216;sensitive#8217; to her circumstances. At the same time, he found her behavior over 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 #8216;egregious.#8217; She embodied a danger to the lives of innocent travelers and pedestrians on space exploration essay and near the roadways. His sentencing scheme removed that peril for the period of years imposed for confinement. The sentencing fell within the dance dissertation bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the essay study abroad defendant#8217;s argument is 2010, that the exploration judge had a duty to make specific reference to your 2010, the Lynn Item article in statement help cv, his collective question to the jury. The Jackson case creates no such duty.
Specific reference would raise the dance your 2010 risk of juror research. The judge#8217;s choice created no error of law or abuse of discretion. Mass DUI OUI #8220;Not Public Way#8221; Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of dame in notre series, Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the dance influence of alcohol. 76 Mass.App.Ct. 830. Appeals Court of Massachusetts, Argued Feb.
3, 2010. Decided June 1, 2010. Sharon Dehmand for the defendant. The Merchant? Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for the Commonwealth. Dance Your 2010? Present: KAFKER, VUONO, #038; SIKORA, JJ.
Observed obviously intoxicated and urinating in the merchant of venice critical essay, public immediately after driving onto a pier in the Charlestown section of Boston, the dissertation defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. Christian Doctrine Essay Great Series? c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the 2010 pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of book christian in notre, counsel, and dance 2010, that the judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in dame essay great, 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 dance your dissertation 2010 Terry Ring Way. As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.? Entry to the pier is then through a swinging gate.
Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about help 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of dance dissertation, Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Pier 4.2 While walking from the the merchant of venice essay ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of dance your dissertation 2010, him. This caught his attention because he understood from signage at space the pier, his city employment, and dance your dissertation 2010, his activities at the pier that unauthorized vehicles were not allowed on exploration essay the pier. Dance Your Dissertation 2010? The vehicles he had seen on the pier were ?usually the director#8217;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#8217;s car was on would had to study, have gone across the wooden boards into the section down on the pier; there#8217;s no motor vehicles at all, it#8217;s a pedestrian pier,? and your dissertation 2010, subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there#8217;s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the website thesis 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 dance your, alcohol. Spinetto attempted to evocative, dissuade the defendant from your 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 website thesis leaving by opening and closing the truck#8217;s doors and by your dissertation closing the gates to the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. Essay Study Application? Shortly thereafter, the national park rangers and Boston police arrived. Dance Your Dissertation? After examining the truck, in which they found beer, and personal help cv, talking to the defendant, the police placed the defendant under arrest. 2. Public way. In order to 2010, sustain an space, OUI conviction, the Commonwealth must prove that the 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. Dance Your? 90, ? 24(1)( a )(1). ?Way? is further defined by statute to include ?any public highway, private way laid out evocative, under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the ?public have a right of access by dance 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 development in notre series, its status, rather than the 2010 subjective intent of the essay study abroad application 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 see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel#8230;.? 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. Your? ?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. Stoddard, 74 Mass.App.Ct. Exploration Essay? 179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of dance your dissertation 2010, public accessibility). Indicia that the application way is 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. Stoddard, 74 Mass.App.Ct. at dance 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is of great significance?). 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 space exploration essay 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 egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and dance your dissertation 2010, other people out on the pier as there are almost every evening,? and testimony regarding the presence on website thesis 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 dissertation, authorized vehicles. The Commonwealth#8217;s own testimony also supported the contention that only limited vehicular access was allowed on development series 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 dance your dissertation 2010, a close question. There was ample evidence that the pier was public and a way and paved and lit in 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 essays defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the 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 your, George reversed the conviction because the drinking and 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 place. However, the gate blocking vehicular access to the pier was not locked and of venice critical, could be opened by your 2010 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 evocative, 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 your pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at the merchant 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 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 the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of alcohol not only on the pier, but also on 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 get to the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to your, 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. Website Thesis? The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to dance, urinate in public. Proof of 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. 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Study Abroad Application? Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the public way, the driving, and dance 2010, the impairment. Moreover, the judge#8217;s instruction to the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and essay abroad, maintained by some level of government is what we call a public way. Dance Your? This includes, for instance, interstate and state highways, as well as municipal streets and roads.? Thus, the instructions on public way encompassed the public roads on which the personal statement help defendant testified that he drove to arrive at the pier. 3. Remaining issues. We need not belabor the remaining issues.
First, trial counsel#8217;s failure to object to various hearsay statements by dance your dissertation 2010 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 essay this record that trial counsel#8217;s informed and strategic decision to elicit from the your dissertation 2010 defendant that he had sustained a knee injury and that was why he refused to 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 defendant#8217;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 limb after being run over by a drunk driver over thirty years prior, and making a plea for the judge to keep the essay study defendant from injuring other people. Although the judge briefly mentioned Spinetto#8217;s community impact statement in her sentencing remarks, it is clear that the defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the 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 affirmance: that the evidence and the judge#8217;s proper instructions permitted the jury to find that the defendant had driven under the influence of alcohol on the public roads leading to dance 2010, the pier. Ante at 835, 927 N.E.2d at 500.
That analysis freed us from the need to website thesis, resolve the ?close question? whether the pier constituted ?any way or #8230; any place to which the public has a right of access, or #8230; any way or #8230; any place to which members of the dance 2010 public have access as invitees or licensees#8230;.? G.L. c. Essay Study Abroad? 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of dance your dissertation, 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 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 help, 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon any way or in any place to which the public has a right of your dissertation 2010, access, or upon any way or in any place to which members of the personal help public have access as invitees or licensees, operates a motor vehicle #8230; while. under the your influence of intoxicating liquor #8230; shall be punished#8230;.? 3. The opinion of the court describes the location, the website thesis access roads, the gate, and signage related to the pier. Ante at 833-835, 927 N.E.2d at 499-501. Four important and independent circumstances of the use of the dance dissertation 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 children from the pier; their parents and friends would observe their. Exploration Essay? races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and endangered by the defendant#8217;s driving were pedestrians. Additionally, the evidence permitted the jury to make the following findings about the your dissertation 2010 defendant#8217;s conduct. He drove his pickup truck at a high speed onto the merchant of venice critical essay 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. Dance Dissertation? The truck suffered substantial damage; the defendant got out again and book dame development doctrine great in notre series, walked away from it. Major case law.
A sensible and direct application of the words of the statute to the circumstances of the pier and the actions of the defendant would appear to make him punishable. Dance Your Dissertation 2010? However, the interpretative overlay of the following cases has required that the ?way? or ?place? in essays, 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 affirm the conviction of the 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 2010, under authority of law.? St.1906, c. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for the protection of travellers on highways,? and therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. The Merchant Essay? 566, 567-568, 150 N.E. 829 (1926) (movement of dance your 2010, car for several feet by evocative mere shifting of gear and dance your 2010, without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass.
345, 348, 158 N.E. 758 (1927) (the statute ?was intended to space exploration, regulate the use of motor vehicles upon ways?). 2010? In 1928, the the merchant Legislature rewrote the your 2010 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 #8230; while under the influence of intoxicating liquor #8230; shall be punished #8230;? (emphasis supplied). G.L. c. 90, ? 24, as appearing in St.1928, c. 281. Thus the notion of space essay, statutory protection for highway travelers or motorists took hold in the version of the your act predating any reference to operation in 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 influence. Cv? Despite the your 2010 added term, the court in Commonwealth v. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the of venice critical essay influence on dance a private way connecting two public ways was not operation upon statement help 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 private way had permitted use of it by dance dissertation 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 essay, strict construction of your, penal statutes required an explicit legislative statement expanding the exploration place of public access to private sites receiving members of the public as business invitees or licensees. Ibid. Three years later the dance Legislature responded with the study abroad application additional words ?as invitees or licensees.? St.1961, c. 347.
In one subsequent case, Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the influence?), the dance 2010 court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). Space Exploration? In another it determined that the defendant#8217;s operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the dance your dissertation owner#8217;s permission did not involve a ?place to critical, which the members of the 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 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 dance dissertation center field area of a public school baseball field did not qualify as a public way or place to which the application public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field. Dance Your? 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 website thesis motor vehicle. Id. at 638, 550 N.E.2d 138. 4. The issue. None of the your dissertation cases appears to have addressed the cv 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 dance your its language and evocative essays, contradicted by dissertation 2010 its safety purpose. The precise language of the act is the first source of insight into website thesis, its meaning and legislative intent. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to dance dissertation, impaired operation ?upon any way or in any place? accessible to members of the public as invitees or licensees.
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 persons conveyed by help cv motor vehicles. 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 6, 153 N.E.2d 664. Your Dissertation? 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. Essay Application? On three occasions the courts have pointed out that the act#8217;s penal character requires strict interpretation.
See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to dance your, the statute#8217;s meaning?); Commonwealth v. Website Thesis? Callahan, 405 Mass. at dance your 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). Evocative? 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#8217;s limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Dance? Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. 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, application in a discussion of the scope of the act.
One is dissertation, 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 study abroad the defendant#8217;s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature#8217;s addition of the word ?place? in 1928 meant something more than a ?way.? Both the statutory definition of ?way,? G.L. c. Your 2010? 90, ? 1, supra at note 4, and 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 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. Evocative? The 1928 addition of the term ?place? by the Legislature expanded the diameter of the statute beyond the your 2010 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. Personal Statement? 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 dance 2010 inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. Book Dame Development Doctrine Essay In Notre Series? 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#8217;s words ?any place to dance your dissertation, which the application public has a right of access, #8230; or #8230; any place to which members of the public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to dance your dissertation 2010, 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. Exploration? Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to dance your 2010, keep their vehicles on usual roadways. It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the the merchant critical essay 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 protection against impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the act.
It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and dance your, status of his endangered or injured victim. Solutions. A ?place? is book christian dame development doctrine essay in notre series, a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. Dance 2010? The decisions have fallen behind the statute. The principle of essay abroad, stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the momentum of error. Your Dissertation 2010? Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon evocative the operator#8217;s use of public roads adjoining the place in dance your dissertation 2010, which the impaired driving injured or endangered pedestrians, as occurred here.
Within the judiciary the abroad Supreme Judicial Court could reconsider the present construction said by the court in your 2010, George to have evolved without discussion. Finally, and perhaps ideally, the Legislature could further amend the essays statute to your, extend its reach unmistakably to space exploration essay, ?any place in which the public has a right of access, or #8230; any place to dance dissertation 2010, which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the 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 drive to the Charlestown Pier. He then drove in dame doctrine great series, traffic on public streets leading to the Navy Yard and Pier 4. As he approached the dance 2010 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#8217;s case on the public way question, we do not consider the defendant#8217;s testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. 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. The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and 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 defendant was driving under the influence on public roads prior to his arrival at the pier. Essay Study? 5. Dance Your Dissertation 2010? We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge#8217;s instructions and the proof offered adequately presented the issue for the jury#8217;s consideration. 6. The passenger left the space car soon after they were confronted at the pier. 7. The Commonwealth chose not to dance, inquire about the field sobriety test on cross-examination.
8. Abroad? The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendant#8217;s prior record, having considered the mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to dance your, the recommendations of the prosecutor in the case and the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of evocative, 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). Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988).
Commonwealth v. Dance Your? Dube, 59 Mass.App.Ct. Statement Cv? 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. That limitation, however, does not bar the dissertation court from useful observations in dicta about the continuing viability of precedent challenged by the facts or arguments of website thesis, specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. Dance Your? 2, 517 N.E.2d 502 (1988), questioning the website thesis then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlord#8217;s breach of covenants in 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 insertion of standards or rules to dance dissertation 2010, cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct. 190, 196 n. Essay Study Application? 4, 794 N.E.2d 1229 (2003), suggesting the your utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of that view by personal help cv the Supreme Judicial Court, S.C., 442 Mass. 423, 440-449, 813 N.E.2d 516 (2004).
2. Dance Dissertation 2010? As discussed below, the Supreme Judicial Court, in its last treatment of the 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. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of that term by G.L. c. Abroad Application? 90, ? 1: ?any public highway, private way laid out under authority of your 2010, statute, way dedicated to of venice critical, public use, or way under the control of park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at dance your dissertation 2010 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. Essay Study Abroad Application? 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 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. 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 dissertation 2010, jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of website thesis, counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. Dance Your 2010? McGILLIVARY. Appeals Court of Massachusetts. Evocative Essays? September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the dissertation 2010 influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and space exploration essay, returned in the Superior Court Department on 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. Dance 2010? Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by space exploration a Superior Court jury of dance 2010, operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. 90, § 24(1)(a)(1). 1 His principal issue focuses on the meaning of #8220;operation#8221; under that statute. We affirm.
1. Evocative Essays? Operation of the motor vehicle. A. Operation as matter of your, law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the essay keys in the ignition and turning the electricity on, but not turning the engine on. There was no evidence from which the jury could infer that the your defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. Dame Development Great? 1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into the ignition and turning it does not constitute operation when the dissertation 2010 engine has not been engaged.
2 The issue whether a defendant who places the key in the ignition and turns the electricity on without starting the engine may be found to essay study, be #8220;operating#8221; the vehicle for dance your dissertation purposes of G.L. Christian Doctrine Essay In Notre? c. 90, § 24, is one of first impression in Massachusetts. 3. To define #8220;operation#8221; we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24 (1928), which held that #8220;[a] person operates a motor vehicle within the dance 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.#8221; 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation). Under the Uski definition, turning the key in the ignition to the #8220;on#8221; setting could be found to be part of a sequence that would set the vehicle#8217;s engine in motion and evocative essays, that would, thus, constitute operation. 5. Our conclusion is informed by dissertation the public policy underlying the Massachusetts OUI statute. The purpose of G.L. c. 90, § 24, is to #8220;protect the public from intoxicated drivers,#8221; Commonwealth v. Ginnetti, 400 Mass.
181, 184 (1987), by #8220;deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct. Abroad Application? 317, 300-321 (1994), quoting from State v. Your Dissertation? Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf. State v. Haight, 279 Conn. Website Thesis? 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (#8220;[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 movement of a motor vehicle while intoxicated#8230;#8221;). Even an intoxicated person who is sleeping behind the wheel is dangerous because #8220;that person may awaken and decide to drive while still under the influence.#8221; State v. Kelton, 168 Vt. 629, 630 (1998). 6. Dissertation 2010? In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in the passenger#8217;s seat, turned the ignition keyan act which the jury could have found to be the first step in a sequence to set in motion the motive power of the personal help cv vehiclewas sufficient to permit the jury to conclude that he #8220;operated#8221; the motor vehicle. See also State v. Haight, 279 Conn. at 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 act that is part of a sequence that will #8220;set in motion the motive power of the vehicle#8221;) (citation omitted). 7, 8. We are unpersuaded by the defendant#8217;s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to the #8220;on#8221; position could not constitute operation.
Specifically, the defendant argues that turning the dance your dissertation key in the ignition to a position that does not start the car would only draw power from the evocative battery and thus neither starts the engine nor makes use of the power provided by its engine. Dance Your 2010? Even if we assume, arguendo, that the defendant is correct and that turning the key to the #8220;on#8221; position does not engage the engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at 183-184, the cv court was faced with the dance your question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. c. 90, § 24, #8220;merely because it is immovable due to road or other conditions not involving the dame development in notre vehicle itself.#8221; Id. at 184. Applying the dance dissertation Uski definition to the facts before it, the court concluded that #8220;the defendant#8230; operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine.#8221; Id. at 183-184. In so holding, the essay in notre series court did not state that operation was conditioned on dance your dissertation 2010 an engine being engaged, or that Uski so ruled. Finally, we reject the defendant#8217;s argument that the jury instructions were inappropriate. The judge#8217;s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of the merchant of venice critical essay, miscarriage of justice. Contrary to the defendant#8217;s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver#8217;s seat with a key turned in dissertation, the ignition compelled a finding of operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11.
B. Sufficiency of the evidence. The defendant, who does not challenge being under the influence of intoxicating liquor 12 or the fact that the vehicle was on the merchant critical essay a public way, 13 argues on appeal that the Commonwealth failed to present sufficient evidence that he #8220;operate[d] a motor vehicle.#8221; See G.L. c. 90, § 24(1)(a)(1). More specifically, he contends that as a factual matter, the Commonwealth failed to your, prove that he put the key in the ignition of the car and turned the key. We consider #8220;whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by personal statement help cv the defendant, is sufficient#8230; to permit the jury to infer the existence of the essential elements of the crime charged#8230;#8221; beyond a reasonable doubt. 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 dance your dissertation 2010 defendant was found asleep in the driver#8217;s seat #8220;slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.#8221; The defendant#8217;s feet were #8220;right in space exploration, front of him.#8221; The vehicle#8217;s dashboard was illuminated. The key was in the ignition and had been turned to the #8220;on#8221; position so that the #8220;energy to the vehicle was on,#8221; but the engine itself was off and #8220;[t]he vehicle was not running.#8221; The police officer had to dance, #8220;physically turn the ignition back#8221; in order to remove the key. The police did not observe anyone else in dame development doctrine essay great in notre, the van at the time of arrest. Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the driver#8217;s seat of the vehicle, put a key in the ignition and turned it to the #8220;on#8221; position.
See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (#8220;Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI#8221;), citing Commonwealth v. Petersen, 67 Mass.App.Ct. 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 dance your dissertation 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#8217;s keys. The defendant testified that, after he moved to the driver#8217;s seat and essay, 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 2010 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 essay key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of dance 2010, not guilty. See Commonwealth v. Pike, 430 Mass. 317, 323-324 (1999).
Second, the defendant points to the testimony of his friend that the friend left the defendant passed out in the passenger seat and christian dame essay, threw the your 2010 keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into the driver#8217;s seat, picked up the essays key and dissertation 2010, put it in the ignition when he moved to the driver#8217;s seat. 2. Other issues. A. Though he did not object below, the abroad 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#8217;s argument disputing the defendant#8217;s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel#8217;s argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass.
397, 404 (1999). We also conclude that the prosecutor#8217;s statement that the defense witness#8217;s testimony corroborated the officers#8217; testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was #8220;improperly muzzled#8221; at dance dissertation trial because he was not permitted to exploration, testify that he intended to sleep overnight in the van so that he could go to court in Gloucester the next day. The defendant, however, was permitted to your, elicit testimony from the defendant#8217;s friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorney#8217;s strategic advice not to testify during his examination about statement his plans to sleep in the van because such testimony might open the door to evidence of prior convictions of driving under the influence. 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. Dance Your Dissertation 2010? The record reflects that as soon as the judge became aware of website thesis, a conflict between the defendant and his counsel, the defendant was provided an opportunity to explain his reasons for wanting to dance your dissertation 2010, remove his attorney.
The judge did not abuse his discretion in denying the defendant#8217;s motion where (1) this trial counsel was the defendant#8217;s third attorney; (2) the space exploration essay case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for dance your 2010 a new trial on essays his behalf, but without the defendant#8217;s presence, the defendant#8217;s presence would not have affected the outcome of that motion for a new trial; and dance your dissertation 2010, (4) the defendant merely complained of something that any lawyer who represented him #8220;who had any competence at all would do.#8221; See Commonwealth v. Personal Statement? Tuitt, 393 Mass. Your Dissertation 2010? 801, 804 (1985). D. The defendant argues that the judge abused his discretion by exploration refusing to remove two jurors for dance dissertation 2010 cause. Exploration Essay? We disagree. With respect to each of the complained-of jurors, the judge dispelled any concerns about the juror#8217;s bias through follow-up questioning, in which the jurors said they would consider all the evidence to dance, determine whether a police officer was telling the truth in the event that the officer#8217;s testimony was challenged. A trial judge is afforded #8220;a large degree of discretion#8221; in the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. Website Thesis? 798, 808 (1995). #8220;Where, as here, a judge has explored the dissertation 2010 grounds for any possible claim that a juror cannot be impartial, and essay study, 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.#8221; Commonwealth v. Seabrooks, supra at your 2010 443. No such prejudice was manifest here. E. The defendant challenges the sufficiency of the evidence of prior convictions presented at the subsequent offense portion of the merchant of venice essay, his trial.
Reviewing the issue under the familiar standard of Commonwealth v. Dance Your 2010? Latimore, 378 Mass. at 676-678, we conclude that the defendant#8217;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 twice in 1988. See Commonwealth v. Bowden, 447 Mass. Statement Help? 593, 602 (2006) (#8220;[registry of motor vehicles] records, which contained more particularized identifying information#8230;, also reflected the dance offenses and the fact that they were the defendant#8217;s#8221;). Christian Dame In Notre Series? See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 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 convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct.
1, 5 (2010). Dance Your Dissertation 2010? Finally, the judge#8217;s instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the jury that the documents in question were OUI convictions and reminded the jury that the Commonwealth still had the burden to prove that the defendant was the person who had committed these previous offenses. F. There is no merit to the defendant#8217;s contention that he was denied his right to speedy trial. Pursuant to of venice critical, Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.
910 (1979), #8220;a criminal defendant who is not brought to dance your dissertation, trial within one year of the evocative return day in dissertation, the court in which the case is christian dame development doctrine essay great in notre, awaiting trial is presumptively entitled to dismissal of the dance your charges unless the Commonwealth justifies the delay.#8221; Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant#8217;s trial began on website thesis January 23, 2007, 686 days later. #8220;The delay may be excused by a showing that it falls within one of the #8216;[e]xcluded [p]eriods#8217; provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.#8221; 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#8217;s motion to dismiss show that many days are excluded from the calculation. Due to jointly agreed upon continuances by the parties, at least 117 days are excluded.
15 See Barry v. Dance Dissertation 2010? 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#8217;s motion to dismiss, which was filed on December 13, 2006, and decided on January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days. See Commonwealth v. Book Dame Development Doctrine In Notre Series? Spaulding, 411 Mass. at 505 n. 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and your, trial, meaning that fewer than 365 days remain to count against the Commonwealth. Website Thesis? Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the motion to dismiss is dance your dissertation, affirmed. 18. 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. The Merchant? 28, §§ 1, 2, provides in relevant part: #8220;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 dance 2010, alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of book dame development essay series, 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#8230;. #8220;If the your 2010 defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program#8230; 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 [$1,500] nor more than [$25,000] and by imprisonment in space, the state prison for not less than two and one-half years nor more than five years#8230;.#8221; 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is #8220;standing still.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct.
317, 320 (1994), quoting from Commonwealth v. Your Dissertation 2010? Clarke, 254 Mass. 566, 568 (1926). 3. If the evidence shows that a defendant was seated in application, the driver#8217;s seat with the dance your 2010 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. The Merchant Essay? 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 #8220;seated in the driver#8217;s seat with the engine running and a key in the ignition#8221;); Commonwealth v. 2010? Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of car with engine running and keys in ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on application the motor or simply placed the key in the ignition. 5. See also Commonwealth v. Your 2010? Sudderth, 37 Mass.App.Ct. at 320 (#8220;The defendant#8217;s intention after occupying the study abroad driver#8217;s seat is not an element of the statutory crime#8221;).
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) (#8220;We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to dance, the safety and welfare of the public. The danger is website thesis, 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 the vehicle, still there is a legitimate inference to dance, be drawn that he placed himself behind the wheel of the vehicle and abroad application, could have at your dissertation 2010 any time started the automobile and driven away#8221;). 7. Cf. Stevenson v. Study Abroad Application? Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in dance dissertation 2010, holding that the defendant did not operate the vehicle #8220;[b]ecause the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment#8221; of the vehicle); Propst v. Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the evocative essays Stevenson v. Falls Church case stands for dance your dissertation 2010 the proposition that the position of the key in the ignition is a factor that a trial court should consider but does not create a bright line rule). 8. Essay Abroad? We do not decide whether any or all of the following could be found to be operation under G.L. c. 90, § 24: inserting a key in the ignition without turning it and without engaging the motor or the dance your dissertation 2010 vehicle#8217;s power; using an electronic remote starting device to evocative essays, start the engine of the car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in the ignition to dance 2010, engage either the electricity or the motor before going to sleep in website thesis, a seat other than the driver#8217;s seat. 9. In the absence of any evidence below regarding whether the key, when turned in the ignition to the on your 2010 position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the jury instructions is the following: #8220;The first element which the Commonwealth must prove is that the space essay defendant operates a motor vehicle.
The expression #8216;operation of a motor vehicle#8217; 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 dance vehicle in motion. To operate a motor vehicle, it is not necessary that the engine be running. The intentional as opposed to the merchant, accidental manipulation of any mechanical part of the vehicle, or the use of any electrical agency which alone or in sequence will set in motion the 2010 mode of power of the vehicle is sufficient in law to constitute operation. A person operates a motor vehicle, within the meaning of the law, when, in personal statement, the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the dance dissertation vehicle. The Commonwealth need not prove the defendant#8217;s intention after occupying the driver#8217;s seat.#8221; 11. Book Dame Essay Series? We also reject the defendant#8217;s argument that #8220;a stopped engine instruction#8221; was required because the engine was stopped, and the stop was not incidental to the operation of the vehicle. See Commonwealth v. Dance Your 2010? Cavallaro, 25 Mass.App.Ct.
605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, § 24, includes #8220;at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation#8221;). Such an instruction was inappropriate here where the Commonwealth#8217;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 #8220;highly intoxicated.#8221; Furthermore, the christian dame development in notre arresting officer reported that the defendant smelled very strongly of dance your dissertation, alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. Of Venice Critical? The arresting officer testified that the vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the your dissertation Commonwealth failed to meet its burden by not introducing sufficient evidence that the defendant#8217;s friend was not the book development doctrine great series 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 dance your dissertation 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 (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing). 16. The defendant#8217;s trial on an unrelated charge began on October 5, 2006.
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 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 space exploration essay, April 7, 2006. Dance? 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 the merchant of venice essay, all excluded days.
18. Dance 2010? The defendant also appeals from the space exploration essay denial of your dissertation 2010, his pro se motion to dismiss under G.L. Abroad? c. Dissertation 2010? 276, § 35. Assuming, arguendo, that the space essay judge denied the motionthere is no record of such rulingand that this issue is properly before this court, we affirm. General Laws c. 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is your 2010, 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 exploration, negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. Dance Your Dissertation? c. 90, § 24[a]). 75 Mass. App. Ct. 643. Appeals Court of Massachusetts, Bristol.
Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. Evocative? 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 motor vehicle homicide by operation under the influence of intoxicating liquor and dance your dissertation 2010, negligent operation (in violation of essay, G.L. c. Your 2010? 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[a]). The defendant, who is African-American, appeals upon claims that (1) the trial judge improperly allowed the Commonwealth#8217;s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant#8217;s blood alcohol content and erroneously instructed the personal cv jury on that evidence; and your 2010, (3) calculated improprieties by the prosecutor and essay study, 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#8217;s blood alcohol content without the requisite expert testimony and gave an dance your dissertation 2010, erroneous jury instruction in relation to that evidence. Essay Application? Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of your dissertation 2010, 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 help cv defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of G.L. c. 90, § 24G[a]).1 On July 25, 2005, a District.
Court judge allowed the Commonwealth#8217;s motion to amend the June 1 complaint to add an alternate theory of intoxication, a 0.08 percent #8220;per se#8221; violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Your Dissertation? 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 a consecutive sentence of two years in the house of correction on the negligent operation charge. Book Doctrine Great In Notre? 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 2007, the trial judge allowed the motion.
The allowance of that motion is not at issue in this appeal.3. Background. The evidence at trial included the following. Dance Dissertation? On November 27, 2003, at approximately 8:30 P.M., the defendant#8217;s jeep and the victim#8217;s vehicle collided at space exploration an intersection in New Bedford. Four people witnessed the collision, and your dissertation 2010, each of them testified at trial. According to website thesis, the witnesses, the defendant#8217;s jeep went through a stop sign at a high rate of speed and struck the victim#8217;s vehicle.
A New Bedford police officer arriving at the scene after the dance accident saw the 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 evocative, intoxication, such as a lack of balance. The victim died at your 2010 the scene from multiple traumatic injuries. Paramedics took the defendant to website thesis, 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 crash scene. Based on her investigation, the expert concluded that the defendant#8217;s jeep had been traveling at sixty-four miles per hour when it entered the dance intersection.4. Critical? [75 Mass. App.
Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to dance dissertation, the officers, the defendant was #8220;angry [and] agitated#8221; and his breath smelled of alcoholic beverages. He told the officers that he had consumed #8220;a forty of OE,#8221; a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant#8217;s demeanor changed when one of the officers notified him of the victim#8217;s death. While at the hospital, the statement cv defendant complained of pain in his chest. 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. Dance Dissertation? 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. Essay? Discussion. 1. Peremptory challenge.
Jury selection proceeded over two days. On the first day, the judge called juror to side bar for dissertation further questions. The juror told the judge that she was diabetic. The judge assured her that the disease would not be a problem. Book Dame Development Doctrine Essay Great In Notre Series? 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 dissertation 2010, impartial juror. The judge seated her conditionally in the jury box in advance of the parties#8217; challenges. The next day, the Commonwealth invoked one of website thesis, its peremptory challenges to dance your 2010, 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 evocative essays prosecutor gave two reasons: (1) the juror#8217;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 dance your, (2) the prosecutor#8217;s discomfort caused by the juror#8217;s fixed stare at him during empanelment.5 The judge then determined that the prosecutor#8217;s explanation was not race-based. [75 Mass. Website Thesis? App. Ct. 647]
Defense counsel asked for the judge#8217;s impression of juror nineteen. The judge stated that the dissertation juror had #8220;somewhat of a halting speech pattern#8221; and was #8220;not incredibly articulate but #8230; not inarticulate either.#8221; The judge did not, however, #8220;associate [the juror's speech] with slowness mentally.#8221; The prosecutor explained that he believed that juror nineteen#8217;s mental acuity was similar to that of another juror whom the evocative essays judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth#8217;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#8217;s peremptory challenge of dissertation 2010, juror nineteen. She stated that, after the previous day#8217;s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and that she #8220;wanted to put some more #8230; findings on the record.#8221; She recounted that she had requested an explanation for the peremptory challenge, and she repeated the prosecutor#8217;s explanation. She noted also that the space applicable case law requires #8220;a two prong analysis. Your Dissertation? One having to do with the adequacy of the Commonwealth#8217;s position once having been questioned about the reason for the merchant the challenge and dance dissertation, then the genuineness of that.#8221; Although the prosecutor had not mentioned the criminal. Book Christian Dame Development Doctrine Great? [75 Mass. Dance? App. Ct. 648] history of juror nineteen#8217;s son when he had offered his explanation for the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the statement that #8220;I find #8230; the Commonwealth#8217;s explanation both adequate and genuine, which is why I allowed the challenges to space essay, stand.#8221; Article 12 of the Declaration of Rights of the Massachusetts Constitution and dance dissertation, the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of space exploration, race.
See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). #8220;[W]e begin with the presumption that a peremptory challenge is proper.#8221; Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct. 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof #8220;that (1) a pattern of dance your dissertation 2010, 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.#8221; Commonwealth v. Soares, 377 Mass.
461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). Dame Development Doctrine Series? When #8220;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 discrimination has been made.#8221; Id. at 463 n. 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the dance 2010 proponent of the peremptory challenge must provide an explanation which #8220;pertain[s] to the individual qualities of the prospective juror and not to that juror#8217;s group association.#8221; Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. If the proponent#8217;s. The Merchant Critical? [75 Mass.
App. Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). Dance Dissertation 2010? The judge must then #8220;make an independent evaluation of the [proponent's] reasons and #8230; determine specifically whether the essay study abroad explanation was bona fide or a pretext.#8221; Ibid. #8220;In other words, the judge must decide whether the explanation is both `adequate#8217; and `genuine.#8217;#8221; Commonwealth v. Dance? Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. Evocative Essays? 422, 428, 765 N.E.2d 725 (2002). #8220;[I]t is imperative that the record explicitly contain the judge#8217;s separate findings as to both adequacy and dance your dissertation 2010, genuineness and, if necessary, an explanation of those findings.#8221; 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 website thesis question of the propriety of the peremptory challenge. She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 2010 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be #8220;slow#8221; and because she had stared at him in website thesis, a discomforting manner. The judge received defense counsel#8217;s opposing response. She then stated that, although the juror had #8220;a halting speech pattern,#8221; she did not find the juror mentally slow.
However, the judge concluded that the prosecutor had not misused the 2010 challenge and allowed it. It was not until the website thesis next day that the judge explicitly found the prosecutor#8217;s explanation to be adequate and genuine. The judge#8217;s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by the line of dance your, cases culminating in book dame development doctrine essay great in notre series, Commonwealth v. Benoit, supra. Dance Your Dissertation 2010? As in Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the of venice critical judge properly allowed the challenge because the 2010 record does not show a prompt assessment of the adequacy and genuineness of the prosecutor#8217;s explanation of the website thesis peremptory challenge.
See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor#8217;s peremptory challenge where judge. [75 Mass. App. Ct. 650] requested explanation and your, then allowed challenge but #8220;did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge#8221;); Commonwealth v. Book Dame Development In Notre? Benoit, supra at 222-226, 892 N.E.2d 314 (defendant#8217;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). Dance Dissertation? In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and website thesis, the recent involvement of her son as a defendant prosecuted by the same district attorney#8217;s office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. Dance Your Dissertation 2010? She introduced, a day later, the evocative experience of the son, a potentially serious ground but one never invoked by the prosecutor in support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the specific, clear findings upon your dissertation adequacy and genuineness required by of venice critical the cases to sustain the peremptory challenge. In particular, the judge did not find either of the prosecution#8217;s grounds adequate, i.e., #8220;personal to dance dissertation 2010, the juror and not based on the juror#8217;s group affiliation#8221; and #8220;related to essays, the particular case being tried,#8221; however genuine or bona fide the dance dissertation 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. Space Essay? Evidence of blood alcohol content. The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory. Dance Dissertation 2010? At the 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 alternate theories of operation under the influence. During the trial, the exploration Commonwealth introduced evidence of the defendant#8217;s blood alcohol content but offered no expert testimony to dissertation 2010, explain the evocative essays relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an instruction on the per dance your, se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: #8220;The law says that if the percentage of alcohol by weight in the defendant#8217;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.#8221; For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor#8217;s reference to it in his summation, or the judge#8217;s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, § 24G, the personal help cv motor vehicle homicide statute, and G.L. Dance Your Dissertation 2010? c. 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 defendant had #8220;a percentage, by weight, of alcohol in website thesis, [his] blood of eight one-hundredths or greater.#8221; G.L. c. 90, § 24G(a). Prior to dance your dissertation, the amendments, the statutes allowed the development doctrine series permissible inference of dance your dissertation, intoxication when the defendant had a blood alcohol content of .08 percent or greater.
Commonwealth v. Colturi, 448 Mass. Study Abroad? 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. Dance? Hubert, 71 Mass.App.Ct. Essay Application? 661, 662, 885 N.E.2d 164 n. Dance Your Dissertation 2010? 2, S.C., 453 Mass. Exploration Essay? 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on dance your 2010 an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Ct.
652] absence of expert testimony to evocative, explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: #8220;If #8230; the Commonwealth were to dance dissertation, proceed only on a theory of impaired operation [instead of book christian dame doctrine essay, both a per 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.#8221; Ibid. As for trials where the Commonwealth relies on both theories, the decision states further: #8220;[I]f the per se and impaired ability theories of criminal liability are charged in the alternative #8230; and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the your significance of the test level to the degree of book christian dame great, intoxication or impairment of the defendant.
In such a case, the jury presumably would be instructed that if they find the 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.#8221; Id. at 817, 864 N.E.2d 498. We presume that this language applies to the results of dance, blood tests in addition to the results of breathalyzer tests. After issuance of evocative, Commonwealth v. Colturi, supra, we held, in dance 2010, Commonwealth v. Essay? Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over dissertation 2010, the defendant#8217;s objection, admission of the statement results required reversal. Id. at 664, 885 N.E.2d 164. In this case, the complaint charged both theories. The judge admitted evidence of the defendant#8217;s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the dance jury on the per se theory. Exploration? Furthermore, the judge erroneously instructed the jury on the permissible inference of intoxication eliminated by the 2003 amendments. See. [75 Mass. App.
Ct. 653] Commonwealth v. Your 2010? Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Evocative? Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the 2010 erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Since the abroad defendant did not object to the alleged errors, we review for dance dissertation 2010 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. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth#8217;s evidence of intoxication was strong. The percipient witnesses testified that the space exploration defendant drove through a stop sign at a high speed and hit the victim#8217;s vehicle.
A police officer who was at the scene testified that the dance 2010 defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant#8217;s jeep had been traveling at sixty-four miles per hour when it entered the intersection. The officers who interviewed the abroad defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in the evening. However, the laboratory supervisor#8217;s testimony that the dance your dissertation 2010 defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication. Without it, the Commonwealth#8217;s evidence was #8220;strong but not overwhelming.#8221; Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164.
Here, as in Hubert, police testimony about the defendant#8217;s signs of intoxication differed. 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 justice. Website Thesis? 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. App. Ct.
654] Conclusion.14,15 For the foregoing reasons we reverse the judgments and set aside the dance your dissertation 2010 verdicts. 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. Website Thesis? c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by dissertation operation under the influence and by negligent operation (in violation of G.L. c. 90, § 24G[a]), the essays 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 #8220;with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or  while under the influence of intoxicating liquor.#8221; G.L. 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. 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. Dissertation 2010? In April of evocative, 2007, after a hearing, the trial judge allowed the Commonwealth#8217;s motion to file a late notice of appeal from the grant of the defendant#8217;s motion for relief from an dissertation, unlawful sentence. Exploration Essay? The Commonwealth#8217;s appeal has not entered in this court. In its brief, the your dissertation Commonwealth does not argue the propriety of the grant of the motion. Therefore, we do not address it.
4. She opined also that the defendant#8217;s jeep had struck a vehicle parked on the side of the road prior to the collision with the victim#8217;s vehicle. 5. In its entirety, the prosecutor#8217;s explanation was: #8220;Judge, she appears slow to me at side-bar in her speech and essays, 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#8217;s slow at side-bar speaking with her, in your, her speech; and I#8217;m concerned that this is a three or four day trial, a lot of witnesses; and I#8217;m concerned about help her ability to try the your dissertation 2010 evidence.#8221; 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the space judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at dance dissertation 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 critical essay, explain his use of a peremptory challenge on juror fourteen because the juror was not a member of your dissertation, a protected class. However, he supplied an explanation, and the judge allowed the challenge. 7. The parties assert that the essays judge stated that she had read Commonwealth v. Maldonado, 439 Mass.
460, 788 N.E.2d 968 (2003). However, the transcript reflects that the judge stated that she #8220;look[ed] over dance your dissertation 2010, the case law, particularly Commonwealth v. Mulder (phonetic), with respect to evocative essays, the possibility of dance your 2010, a peremptory challenge being used to exclude members of a [discrete] group#8230;.#8221; The reference (jumbled in the merchant of venice essay, transcription) most probably was the 2010 Maldonado decision. 8. The judge#8217;s reference to the criminal history of website thesis, juror nineteen#8217;s son was as follows: #8220;I would also add that it was known to all of 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 dissertation 2010, recall me, just this past fall that was prosecuted by the district attorney#8217;s office and space exploration, apparently came up#8230;. [A]nd I don#8217;t remember the case per dance dissertation 2010, se but she spoke about it. It apparently just happened last fall.#8221; The judge went on to say that she understood the Commonwealth#8217;s concern #8220;whether she could perform in a truly objective manner#8221; because her son had experienced the essay abroad application criminal justice process and dance your dissertation 2010, 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 essay, her reasons for allowance of the peremptory challenge, the judge referred to the experience of juror nineteen#8217;s son in your dissertation 2010, the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the space exploration juror#8217;s son as justification for his peremptory challenge. A judge may not supply her own reasons to dance dissertation 2010, justify a prosecutor#8217;s peremptory challenge. Evocative? 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. Your Dissertation 2010? That explanation had little chance of success. #8220;Challenges based on essay application subjective data such as a juror#8217;s looks or gestures, or a party#8217;s `gut#8217; feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.#8221; Commonwealth v. Maldonado, 439 Mass. at 2010 465, 788 N.E.2d 968. 11. This reasoning does not interfere with the authority of a trial judge spontaneously to essay study application, identify, establish, and rule upon a ground of disqualification independently of any challenge of either the Commonwealth or a defendant. 12. 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 your dissertation 2010, this court the Hubert decision in May 2008.
Therefore the space essay judge and trial counsel did not have the 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 preserved the dance dissertation issue so that the essay study abroad application standard of review was the presence of dance, prejudicial error. Here we have reviewed the issue under the essays less demanding standard of substantial risk and found the dance 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 personal statement cv, alleged calculated impropriety by the prosecutor require reversal.
The extraneous influences were (1) a shout by the victim#8217;s mother at the defendant as the jurors left the courtroom on the first day of trial, and your 2010, (2) the presence of a makeshift memorial to the victim at website thesis the accident scene during the jury#8217;s view of the site. The claim of calculated impropriety by the prosecutor arises from your dissertation 2010 testimony of two police officers that they told the defendant that he had #8220;killed#8221; the victim. The defendant asserts that the space essay prosecutor intended that the officers testify in this manner, in violation of the dance dissertation 2010 judge#8217;s decision on a motion in limine. No evidence supports the view that the mother#8217;s outburst or the accident site memorial overcame the judge#8217;s instructions for a verdict based strictly on the evidence. The claim related to the officers#8217; use of the word #8220;killed#8221; fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to website thesis, the United States Constitution by your 2010 reason of the admission of the blood alcohol test result. The rule of Melendez-Diaz v. Evocative Essays? 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#8217;s license was suspended, and at dance dissertation 2010 trial he testified that he knew he was suspended for 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. Evocative? Andrew S. Your Dissertation? Robinson, Asst. Dist. Atty. (orally), Franklin County DA#8217;s Office, Farmington, ME, for evocative essays the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Your Dissertation? 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. Gilman following his conviction at of venice essay 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. P. 35(a). The State contends that the dissertation 2010 court imposed an illegal sentence when it sentenced Gilman to less than the study abroad minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the 2010 Maine Constitution, which requires that #8220;all penalties and punishments shall be proportioned to the offense.#8221; Me. Personal Statement Help? Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the your 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 him as articulated in Crawford v. Website Thesis? Washington, 541 U.S. Dance Your Dissertation 2010? 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State#8217;s appeal is accompanied by the written approval of the Attorney General as required by 15 M.R.S. Dame Development Doctrine Essay Great Series? ? 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b). Because we agree with the State#8217;s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman#8217;s constitutional rights, we vacate only the sentence and remand for 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#8217;s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver#8217;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#8217;s license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the your dissertation 2010 previous ten years. A certified record from the Secretary of State, admitted at trial over Gilman#8217;s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of personal help, his three OUI convictions within the previous ten years. 29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as #8220;Tina#8217;s Law,#8221; provides that in that circumstance #8220;the minimum fine . Dance Your 2010? . . is $1,000 and the minimum term of space exploration, imprisonment is 2 years, neither of which may be suspended by the court.#8221; 29-A M.R.S. ? 2557-A(2)(D); P.L.
2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to dismiss the dance dissertation allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the book doctrine essay allegation would have reduced the charge to dissertation 2010, 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 influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for 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 Confrontation Clause would be violated by 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 evocative essays revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman#8217;s motion for dance dissertation a judgment of acquittal, and website thesis, took the ultimate issue of whether the State had met its burden of dance 2010, proof under advisement. Study Abroad? Gilman then filed a written. argument asking the dance your court to 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. Study Application? 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#8217;s reasoning on the Confrontation Clause issue and again denied Gilman#8217;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 court to dance 2010, reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for evocative essays his argument that convicting him of a Class C offense constituted a due process violation because the dance dissertation 2010 State did not individually notify him that #8220;Tina#8217;s Law#8221; increased the penalties if he were to essays, be convicted of OAR after it took effect. ? 9 On October 27, the your dissertation 2010 court heard argument on Gilman#8217;s due process claim and essays, 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 United States Department of Veterans Affairs, Gilman#8217;s sister, and Gilman himself. At the dance your 2010 conclusion of the hearing, the of venice critical court took the disproportionate punishment issue and the sentence under advisement. Dance 2010? ? 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. Space Exploration? The Defendant has carried his burden in dance your dissertation 2010, 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 book christian dame development doctrine, probation, 500 hours of community service, and a $1000 fine. Your Dissertation 2010? See 17-A M.R.S. ? 1252-C (2009). 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 website thesis, later in dissertation 2010, a written order.
This appeal and evocative essays, cross-appeal followed. A. Dissertation? Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on the State#8217;s power to punish: #8220;Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.#8221; Me. Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to essays, impose an unsuspended prison sentence of at least two years. 29-A M.R.S. ? 2557-A(2)(D). Dissertation 2010? Accordingly, the court#8217;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 the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilman#8217;s individual circumstances, the abroad mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilman#8217;s burden is significant, as #8220;one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.#8221; State v. Dance 2010? Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of #8220;strong and convincing reasons.#8221; Town of website thesis, Frye Island v. Your? State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the 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 book christian development essay series, 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 dance dissertation the trial court to reach that conclusion.
State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to book christian dame development doctrine great in notre, answer the question left open in dance your 2010, Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is christian doctrine great series, convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant#8217;s particular circumstances, we now hold that it is not possible. Your 2010? ? 16 The plain language of section 9 requires that #8220;punishments shall be proportioned to the offense.#8221; Me. Const. art. I, ? 9 (emphasis added). Website Thesis? It says nothing about the 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 dance your dissertation, 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. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of 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 #8220;it is a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings#8221; (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by evocative the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant#8217;s conduct.7 Only in dance your, Worthley did we refer to personal statement help cv, the characteristics of the individual offender, and then only to point out 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 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 your dissertation, offender,8 but has not. required an individualized determination that a mandatory punishment is appropriate except in essay application, death penalty cases. See Harmelin v. Michigan, 501 U.S.
957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (#8220;We have drawn the your dissertation line of required individualized sentencing at abroad capital cases, and dissertation 2010, see no basis for extending it further.#8221;). Regarding the Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in essay, non-capital cases, to dance, individualized sentencing. Legislatures are free to essay, provide for mandatory sentences for your dissertation 2010 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. Exploration? Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by our cases holding that the Legislature has the power to enact mandatory sentences. Dance Your Dissertation 2010? See State v. Dame Doctrine Series? Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court#8217;s discretion when it determines it is appropriate to do so, subject only to dance dissertation, the constitutional prohibition against punishment disproportionate to a given offense. The construction urged by book great in notre series Gilman would go far beyond what the language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature#8217;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#8217;s individual circumstances in finding that a mandatory sentence is 2010, disproportionate as applied to that person is simply reinstatement by judicial declaration of a sentencing court#8217;s ordinary discretion to study abroad application, weigh mitigating factors, and 2010, then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). A court would then always have the essay study application 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 mandatory sentence is disproportionate as applied in a particular case.
We do not read article I, section 9 to render the Legislature#8217;s authority to enact mandatory sentences a nullity.10. ? 21 Because we hold that the clause, #8220;all penalties and punishments shall be proportioned to the offense,#8221; 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. Your? ? 22 This Court #8220;always has the power and duty to uphold the State and essay study abroad application, Federal Constitutions,#8221; and will #8220;protect the dance your individual from an unconstitutional invasion of his rights by the legislative . . . branch of website thesis, government.#8221; Dep#8217;t of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the dance your dissertation Legislature as #8220;the voice of the sovereign people#8221; in the area of crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of the merchant of venice critical essay, legislative concern. It is not the office of the judiciary to your 2010, 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 essay abroad application, the evil to be avoided might then be a cruelty of constitutional dimensions.
It seems to us that the interest of the legislature is paramount in the field of penology and the public safety. The legislature defines the contours of the crime itself, and sets the dissertation 2010 limits for punishment. . Evocative? . Dance Your? . The underlying structure of the penal system is statutory; the coherence of the system is to be found in development great series, legislative direction. State v. Dance 2010? King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Space Essay? Benner, 553 A.2d 219, 220 (Me.1989) (#8220;The power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment.#8221; (quotation marks omitted)). ? 23 We have described the test for your determining when a sentence is cruel and unusual as whether it #8220;is greatly disproportionate. . . and exploration essay, whether it offends prevailing notions of decency,#8221; Worthley, 2003 ME 14, ? 6, 815 A.2d at dance your 376; whether it #8220;shocks the conscience of the public, or our own respective or collective sense of fairness,#8221; State v. Application? Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is #8220;inhuman or barbarous,#8221; State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is #8220;the voice of the sovereign people,#8221; King, 330 A.2d at 127, and thus expresses the people#8217;s will, only the dissertation 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 government assumes that the judgment of the Legislature is the collective judgment of the people. ? 24 Gilman was convicted of a Class C crime, punishable by a maximum of five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the website thesis maximum. 29-A M.R.S. ? 2557-A(2XD). 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 your dissertation 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 exploration rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. C. Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for dance your dissertation 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 dame development great, 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 dance 2010 drunk drivers was #8220;certainly strong enough#8221; to justify the imposition of a minimum mandatory sentence for essays 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 dance dissertation rational relationship of prior OUI convictions to an enhanced sentence for exploration operating after revocation remains intact. ? 27 Gilman next contends, on dance your dissertation the authority of exploration, State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the 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#8217;s due process rights may be violated when an your dissertation 2010, agent of the personal statement help State makes affirmative misrepresentations that are then relied upon to the defendant#8217;s detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and your 2010, thus knowingly violated the book development doctrine essay in notre law. The Legislature changed the statute, the Governor signed it into law, and Gilman is presumed to know what the law is.
See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Contrary to Gilman#8217;s argument, due process did not require that he be individually notified of the change in order to your dissertation 2010, 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 study abroad, as long as five years in prison for your the operation of study abroad application, any vehicle before his license was restored. See 17-A M.R.S. Dance Dissertation 2010? ? 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 Superior Court admitted, over essay study abroad application, his objection, a certified record from the Secretary of State stating that his privilege to operate had been revoked, that he had received proper notice of the dance dissertation revocation, and that he had three OUI convictions within the essays 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 dance Confrontation Clause because #8220;the certification served only to book dame development essay great, confirm the dance dissertation authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.#8221; 2008 ME 177, ? 24, 960 A.2d at 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 essays Supreme Court#8217;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#8217;s certificate stating that an your 2010, analyzed substance was cocaine violated the Sixth Amendment, because although #8220;documents kept in 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.#8221; Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). Website Thesis? ? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and your 2010, 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#8217;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 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 Merchant Of Venice Critical Essay? 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)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in 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: #8220;On motion of the dance your 2010 . Study? . Dance Your 2010? . attorney for the state . . . made within one year after a sentence is help cv, imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner.#8221; M.R.Crim. Dance Your 2010? P. Help? 35(a). Dance Your? 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 essay, the sentences imposed by the Legislature for other crimes. 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 protections against disproportionate punishments and 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) (#8220;The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. Dance Your 2010? . . . The Eighth Amendment#8217;s protection . . . flows from the basic precept of justice that punishment for a crime should be graduated and personal help, proportioned to the offense.#8221; (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (#8220;In analyzing whether a sentence is cruel and your dissertation, unusual as applied, we look to whether the sentence is website thesis, greatly disproportionate to the offense and whether it offends prevailing notions of dance your dissertation 2010, decency.#8221;); State v. Evocative Essays? Frye, 390 A.2d 520, 521 (Me. 1978) (#8220;A mandatory sentence is not cruel and unusual punishment unless the sentence is your, greatly disproportionate to the offense or the punishment offends prevailing notions of the merchant of venice critical essay, decency#8221;); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (#8220;The interpretation of `cruel or unusual punishment#8217; also is informed by the requirement of proportionality.#8221;). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at dance dissertation 2010 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. 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 the crime); State v. Frye, 390 A.2d 520, 521 (Me. Space Essay? 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. Dance 2010? King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of personal statement help, 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 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 lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me.
1969) (holding five-day sentence imposed by court in its discretion for contemptuous #8220;reprehensible conduct#8221; not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. Dissertation 2010? ___, 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. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of website thesis, twenty-five years to life for stealing three golf clubs under #8220;three strikes#8221; law not grossly disproportionate and 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 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 2010, 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 evocative essays crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the dance your 2010 basic sentence, and 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 of venice essay Governor the dance your dissertation equitable power to #8220;grant reprieves, commutations and pardons#8221; in individual cases. 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 of venice, #8220;a legislature making overtime parking a felony punishable by life imprisonment.#8221; Ewing, 538 U.S. at dance your dissertation 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. Study? ? 2557 was repealed and dissertation 2010, replaced by the merchant critical essay P.L. 2005, ch. Dance Your Dissertation 2010? 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The Merchant Critical? The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005.
Gautier#8217;s conviction for being a felon in possession of dance dissertation, a firearm pursuant to 18 U.S.C. Essay Abroad Application? § 922(g)(1) subjects him to dance your dissertation 2010, the enhancement provision of the book dame development in notre series Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant. Your 2010? 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#8217;s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Weinreb, United States Attorney#8217;s Office, John A. Wortmann, Jr., United States Attorney#8217;s Office, Boston, MA, for United States of America. Space Essay? GERTNER, District Judge: TABLE OF CONTENTS. A. Dance Dissertation 2010? Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the book christian doctrine great in notre Crime Defined by Prong (2) of § 32B Is a Violent.
2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Whether the dissertation 2010 1998 Juvenile Offenses Were Committed on Different. 2. Whether the Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and essays, ammunition in the pocket of defendant Eddie Gautier (#8220;Gautier#8221;) one night in Roxbury. The offense stemmed from a night of drunken carousing; the dance dissertation 2010 gun was completely inoperable.1 Though he was originally arrested by 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 essays, a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. Dance Dissertation 2010? But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the book christian development doctrine in notre Armed Career Criminal Act (#8220;ACCA#8221;). See § 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions).
I disagree. In passing the dance ACCA, #8220;Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of essay, harm to persons.#8221; Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier#8217;s criminal history consists of dance 2010, six episodes over personal help, 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 two sentencing hearings, I found that Gautier is dance your, not an armed career criminal under the essay terms of the dissertation 2010 statute. Personal Help Cv? First, his resisting arrest conviction does not constitute a #8220;violent felony#8221; within the meaning of the ACCA. Second, and in the alternative, court records were ambiguous on dance dissertation the question of whether his 1998 offenses were #8220;committed on personal statement cv occasions different from one another#8221; 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 57 months#8217; incarceration, in effect the Guideline felon in possession sentence, and three years#8217; supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for that sentence.
On the night of your 2010, 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. Essays? About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group. One of your dissertation 2010, Gautier#8217;s friends, Salome Cabrera, peered into essay abroad application, the vehicle and made movements toward his waistband. The officers exited the car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted #8220;get the burner#8221; (slang for gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier#8217;s jacket pocket. Dance Dissertation 2010? An examination later revealed that the essay in notre series gun was completely inoperable.3. Gautier was transferred to dance your 2010, federal custody on website thesis February 8, 2006, and indicted on February 15, 2006, on one count of felon in dance your, possession of a firearm and one count of felon in possession of space exploration, 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 gun, and divulged where it had come from.
Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to the charge, but was advised against it because of the possibility of an dance your dissertation, ACCA minimum mandatory sentence of website thesis, 15 years. Counsel for dance your dissertation 2010 Gautier sought a pre-plea Pre Sentence Report (#8220;PSR#8221;). When the pre-plea PSR concluded that an ACCA enhancement was required, the 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 essay abroad application a group of younger, intoxicated friends in dance dissertation 2010, a dangerous area of Boston.
The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the first sentencing hearing on essays October 15, I asked the dance dissertation 2010 government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant#8217;s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the essay study abroad juvenile. Dissertation? offenses Gautier committed in 1998 were clearly separate predicates. Essays? At the final sentencing hearing on December 15, 2008, after reviewing the parties#8217; submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well. Gautier#8217;s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to dance your dissertation 2010, the enhancement provision of the Armed Career Criminal Act. That statute provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by 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#8230;. 18 U.S.C. § 924(e)(1). Gautier#8217;s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the christian dame development doctrine great series sentencing enhancement: First, Gautier#8217;s conviction for resisting arrest may not be a #8220;violent felony#8221; under the ACCA. Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the 1998 offenses were #8220;committed on dance dissertation 2010 occasions different from one another.#8221; A. Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass.
Gen. Laws Ch. Statement? 268, § 32B Is a Violent Felony. The ACCA defines #8220;violent felony#8221; as any crime punishable for a term exceeding one year that #8220;(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is dance your dissertation, burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.#8221; 18 U.S.C. § 924(e)(2)(B). Courts are obliged to essays, 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 not to the facts underlying the conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct.
2143. Put simply, the issue is dance dissertation 2010, what the website thesis 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. Dance Your Dissertation? 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 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 personal help cv 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 #8220;may not hold a minitrial on the particular facts underlying the prior offense,#8221; see United States v. 2010? 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. Essays? Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may #8220;peek beneath the coverlet#8221; of the formal language to 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. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that #8220;peek#8221; can go. #8220;Not very far, is the dissertation answer.#8221; United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at book essay great in notre 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the verdict. Dissertation? When a defendant#8217;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 26, 125 S.Ct. 1254. 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#8217;s 2002 plea to 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 #8220;(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.#8221; Mass.
Gen. Study Abroad Application? Laws ch. 268, § 32B(a). Your Dissertation? The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it #8220;has as an element the use, attempted use, or threatened use of physical force against the person of personal statement help cv, another.#8221; 18 U.S.C. § 924(e)(2)(B)(i); see Gov#8217;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#8217;s colloquy, no plea agreement, and dance 2010, no other record indicating which type of resisting arrest Gautier admitted. Book Christian Essay Great? 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 #8220;peek#8221; at your the underlying facts not comprised by the plea colloquy.
Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the abroad application only extant evidence I may consider, and it simply lists the your dissertation offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of application, resisting arrest and as the. statute is dance 2010, structured in evocative, the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the 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 #8220;using any other means which creates a substantial risk of dance dissertation, causing bodily injury to such police officer or another,#8221; Mass Gen. Laws. ch. 268, § 32B(a), does not explicitly #8220;ha[ve] as an element the use, attempted use, or threatened use of essay application, physical force against the person of another,#8221; 18 U.S.C. § 924(e)(2)(B)(i). Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)#8217;s specification of resistance by #8220;other means,#8221; suggests that Prong (2) does not involve such an element by implication, either. 2. Whether the Crime Defined by 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 dance dissertation 2010 second definition provided by the ACCA. Since resisting arrest is website thesis, 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. Dance Dissertation? See James v. United States, 550 U.S. 192, 127 S.Ct.
1586, 1591, 167 L.Ed.2d 532 (2007). The issue is personal statement help, whether resisting arrest #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; in the language of the dance your dissertation Massachusetts statute, Mass. Gen. Laws. Dame Development Doctrine Great Series? ch. 268, § 32B, #8220;involves conduct that presents a serious potential risk of physical injury to another,#8221; in dissertation 2010, the language of the evocative essays ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the your dissertation question seems to answer itself, but the book christian dame development great Supreme Court has required more than a textual comparison of the criminal statute and dance your dissertation, the ACCA under the residual clause. In Begay v. United States, ___ U.S. Help? ___, 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 your dissertation 2010 determining whether a conviction is a #8220;violent felony#8221; under the residual provision of § 924(e)(2)(B)(ii). Where the christian dame doctrine great in notre series offense in question is not one of those enumerated in the statute, a court must determine not only (1) whether that offense #8220;involves conduct that presents a serious risk of physical injury to another,#8221; but also (2) whether the crime is #8220;roughly similar, in kind as well as in degree of risk posed, to dissertation 2010, the#8221; enumerated offenses. Book Christian Essay In Notre? Id. at 1585.
The latter step is critical here. It requires a court to decide whether the offense in dance 2010, question typically involves #8220;purposeful, violent, and aggressive behavior#8221;—the defining feature of the website thesis enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to 2010, text, the court noted that the presence of the enumerated offenses of burglary, arson, extortion and crimes involving explosives #8220;indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.#8217;#8221; Id. Essays? Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the dissertation 2010 examples.
As to abroad application, history, the Court noted that in dissertation, 1986 #8220;Congress rejected a broad proposal that would have covered every [such] offense.#8221; Id. at 1586. Finally, the Court noted that this interpretation served the ACCA#8217;s purpose of book christian dame doctrine great in notre, #8220;punish[ing] only your dissertation 2010, a particular subset of offender, namely career criminals.#8221; Id. at 1588: The listed crimes all typically involve purposeful, #8220;violent,#8221; and #8220;aggressive#8221; conduct#8230;. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim#8230;. Were we to statement, 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 #8220;armed career criminals.#8221; Id. at 1586-87 (citations omitted). In Begay, the dissertation 2010 Court assumed without deciding that drunk driving involves conduct that #8220;presents a serious potential risk of physical injury to space, another.#8221; Id. at 1584. Even so, it held under the second step of the your analysis that a conviction for driving under the influence (#8220;DUI#8221;) falls outside the scope of the residual clause because #8220;[i]t is dame great in notre series, simply too unlike the dance 2010 provision#8217;s listed examples for us to believe that Congress intended the provision to cover it.#8221; Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze #8220;every conceivable factual offense covered by book dame essay great in notre a statute,#8221; but rather should consider #8220;the ordinary case#8221; of the offense. Dance Dissertation? James, 127 S.Ct. at 1597. In the words of the First Circuit, I must evaluate the degree of space essay, risk posed by #8220;the mine-run of conduct that falls within the heartland of the statute.#8221; United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. 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 #8220;often accompany the conduct that normally constitutes#8221; the dance dissertation offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court#8217;s understanding that it had to consider #8220;what#8217;s the typical, usual type of conduct#8221; constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence #8220;if and essay study, only if a serious potential risk of dance dissertation 2010, physical injury to another is a `normal, usual, or customary concomitant#8217; of the predicate offense#8221;); Winter, 22 F.3d at 20 (#8220;A categorical approach is not concerned with testing either the the merchant essay outer limits of statutory language or the dissertation 2010 myriad of website thesis, possibilities girdled by 2010 that language; instead, a categorical approach is concerned with the usual type of conduct that the essays statute purports to proscribe.#8221;). To determine the your mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute.
In Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant#8217;s stiffening his arms and pulling one away for personal cv a second to avoid being handcuffed constituted resisting arrest by dance your a #8220;means which creates a substantial risk of causing bodily injury#8221; 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 personal help cv, refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. Dissertation? In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the personal statement cv statutory definition.
Commonwealth v. Grant, 71 Mass. App.Ct. 205, 210 n. Dance 2010? 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the mine-run of conduct criminalized by Prong (2) involves a lesser version of #8220;active, physical refusal to submit to the authority of the arresting officers#8221;: paradigmatically, the stiffening of one#8217;s arms to resist handcuffing. Maylott, 65 Mass.App. 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 #8220;presents a serious potential risk of physical injury to another.#8221; Stiffening one#8217;s arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the development essay in notre test. See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a #8220;violent felony#8221; for ACCA purposes) (#8220;While an dance dissertation 2010, individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the website thesis statute also charges behavior which would arguably not cause serious personal injury.#8221;). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and dance, particularly pulling one#8217;s arm free, is #8220;[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.#8221; 433 Mass. at space 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 dissertation 2010, injury to another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not #8220;roughly similar, in kind as well as in degree of risk posed, to the#8221; enumerated offenses. Begay, 128 S.Ct. at book essay 1585. Your? First, looking to the degree of risk: Even if the Grandison court is correct that stiffening one#8217;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 #8220;the possibility of a face-to-face confrontation between the burglar and a third party #8230; who comes to investigate.#8221; James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the #8220;powder keg#8221; rationale). The element of doctrine great series, surprise that spooks a burglar into personal violence is dance your dissertation 2010, 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#8217;s arms than that it will result from a burglary, the setting of book christian development doctrine essay in notre series, a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. Second, looking to the #8220;in kind#8221; test, whether Prong (2) resistance is dissertation, similar in kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves #8220;purposeful, violent, and aggressive behavior.#8221; In Begay, the Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the enumerated offenses. 128 S.Ct. at 1586-87 (#8220;[S]tatutes that forbid driving under the critical influence #8230; criminaliz[e] conduct in respect to dance your, which the offender need not have had any criminal intent at all.#8221;); 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 Study Abroad? But as the First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall #8220;neither within the dance dissertation 2010 safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI #8230;), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.#8221; Id. at 7 (citation omitted). Prong (2) resistance is such a crime.
The First Circuit recently explained that #8220;all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to qualify as a `violent felony#8217; under ACCA.#8221; United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for book christian development those characteristics. It explained: The Supreme Court #8230; use[d] #8220;purposeful#8221; interchangeably with #8220;intentional.#8221; [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is common sense that a DUI is not violent or aggressive in dance, an ordinary sense, the exploration 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 #8220;tending toward or exhibiting aggression,#8221; which in your, turn is defined as #8220;a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.#8221; Merriam-Webster#8217;s Collegiate Dictionary 24 (11th ed. 2003). Violence may be defined as #8220;marked by extreme force or sudden intense activity.#8221; Id. at 58. Book Christian Dame Development In Notre? Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a #8220;crime of violence#8221; under the career offender sentencing guidelines.10 Id. at 59. Dance Your 2010? While the offense undoubtedly presented a serious potential risk of evocative essays, potential injury to. another, it was not purposeful or aggressive enough to be similar #8220;in kind#8221; to the enumerated offenses.
Id. A similar conclusion obtains here. Dance Your 2010? To be sure, the 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 interstate transport of a minor for prostitution, which the website thesis First Circuit held in Williams constituted a #8220;crime of violence#8221; under the career offender provision of the sentencing guidelines. 529 F.3d at 7-8. A defendant who prostitutes minors #8220;is aware of the dance 2010 risks that the prostituted minor will face#8221; and exploration, the risk of harm is #8220;easily foreseen by the defendant,#8221; 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. 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 dance your dissertation 581, 110 S.Ct. The Merchant? 2143 (noting that Congress considered burglary #8220;one of the `most damaging crimes to dance 2010, society#8217; because it involves #8216;invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and valued possessions#8217;#8221; (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 the force or domination impulse that the First Circuit has held defines aggression, and it lacks the critical essay extreme force and sudden intenseness required by the court#8217;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 your dissertation 2010, constitute violent felonies or crimes of 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 space exploration a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from dance your dissertation a person); United States v. 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 evocative essays premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Your 2010? Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr.
30, 2004) (breaking and entering a commercial building); United States v. Space Essay? 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 dance your dissertation finding an offense to be a #8220;violent felony#8221; was easier to satisfy. In light of the difference in aggression and violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the #8220;`way or manner#8217; in which it produces#8221; risk of website thesis, injury. Begay, 128 S.Ct. at dance your dissertation 1586. To be sure, some courts—including within this district—have found that resisting arrest is an book essay in notre series, ACCA predicate, but all of these cases predate Begay.11 Begay. #8220;charted a new course in dance your dissertation 2010, interpreting the critical violent felony definition of the Armed Career Criminal Act.#8221; Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in christian development doctrine in notre, this court, Judge Zobel rejected the government#8217;s contention that a prior conviction under the 2010 Massachusetts resisting arrest statute constituted a #8220;crime of study abroad application, violence#8221; under the your dissertation 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 twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)).
In another post-Begay case on resisting arrest, the U.S. District Court for the District of Kansas held that the crime of fleeing and eluding an officer is essay, not a crime of violence because #8220;the statute also charges behavior which would arguably not cause serious personal injury#8221; and because resisting arrest #8220;is not similar to the listed crimes set forth#8221; in § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Importantly, the dissertation district court so held despite the existence of a 2005 precedent concluding that the resisting arrest was a crime of violence. The court explained its about-face as required by Begay.
Id. at *2. In light of the Supreme Court#8217;s pronouncement in Begay, then, I find that the Prong (2) version of dame great series, resisting arrest is dance dissertation 2010, not a #8220;violent felony#8221; under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of website thesis, one#8217;s arms, not the application of force to 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 2010 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 most two statutory predicates—too few to book dame development doctrine essay, trigger the fifteen-year mandatory minimum.
B. Whether the dance your dissertation 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier#8217;s resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. The Merchant? In the alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not #8220;committed on occasions different from one another#8221; as required to constitute independent predicate offenses.12 18 U.S.C. § 924(e)(1). The First Circuit has held that #8220;the `occasions#8217; inquiry requires a case-by-case examination of the totality of the circumstances.#8221; United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in dance your dissertation 2010, that examination include the #8220;identity of the victim; the type of crime; the time interval between the crimes; the website thesis location of the crimes; the continuity vel non of the defendant#8217;s conduct; and/or the dance your apparent motive for essay the crimes.#8221; Id. As one would expect from Congress#8217; use of the your dissertation 2010 word #8220;occasion,#8221; the First Circuit has focused on the element of time. The Stearns court summarized that the statute distinguishes between, on the one hand, #8220;a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,#8217; 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,#8221; and on the other, #8220;a time lapse which does not mark the endpoint of the first crime, but merely the personal statement natural consequence of a continuous course of extended criminal conduct.#8221;13 387 F.3d at 108 (defendant who burglarized the dance 2010 same warehouse on essay study abroad 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.
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 your dissertation 2010, entering occurred on different occasions because they were committed on christian development doctrine great in notre consecutive days); United States v. Mollo, No. 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and 2010, thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the 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 the merchant critical essay above legal standard to the facts of your 2010, Gautier#8217;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 #8220;categorical approach#8221; to determining whether a prior conviction qualifies as a #8220;violent felony#8221; 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 a guilty plea, the Court has limited district courts to #8220;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 essay study abroad application the defendant, or to some comparable judicial record of this information.#8221; Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Dissertation? The issue I confront here is whether this same source restriction applies to my consideration of whether two offenses were #8220;committed on occasions different from one another.#8221; 18 U.S.C. § 924(e)(1). Essays? The First Circuit has never ruled on your this issue. In a pre-Shepard case, the court #8220;express[ed] no opinion#8221; on the lower court#8217;s citation of Taylor for the proposition #8220;that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.#8221; Stearns, 387 F.3d at 107. Study Abroad Application? In that case, the defendant sought an evidentiary hearing to develop his argument that two of dissertation, his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an of venice essay, involved inquiry and dance your dissertation, denied his motion, but because the evocative essays defendant accepted the dance your judge#8217;s ruling without objection, the First Circuit held he could not raise the issue on appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. Evocative? 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 described in the PSR to find that two drug offenses disposed of on the same day were in fact #8220;committed on occasions different from one another.#8221; Id. at 38.
The court of 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. The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the dance dissertation #8220;ACCA#8217;s use of the of venice critical term `occasion#8217; 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.#8221; Id. at 286 (upholding trial judge#8217;s reliance on dance your dissertation 2010 the PSR to find that three burglaries occurred on essays separate occasions where that information was derived from dance 2010 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. 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 court could not establish on the basis of Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. Bookman, 197 Fed. Appx. Help? 349, 350 (5th Cir.2006) (per curiam) (vacating defendant#8217;s sentence where the sequence of his predicate offenses was not established by dance your Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by 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#8217;s prior crimes were committed on website thesis 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. Dance? 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Website Thesis? Oct. 16, 2008) (limiting the occasions inquiry to facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. Dance 2010? 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at evocative *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and holding that the trial court #8220;properly reviewed the charging documents to determine that the offenses occurred on dance your dissertation three separate occasions#8221;). By contrast, three circuits have held that the christian development doctrine great series source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: #8220;All of dance 2010, our opinions on this issue have involved consideration of the 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 predicate offenses.#8221; 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 of venice critical separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding #8220;[a]s a practical matter#8221; that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is #8220;unsuited to your dissertation, a categorical approach,#8221; United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. Critical Essay? 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to the categorical approach in Shepard.
But see United States v. Your Dissertation 2010? Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the district court#8217;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#8217;s rulings in help cv, 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#8217;s categorical approach #8220;caution[s] the judge against dance 2010 becoming embroiled in a `daunting#8217; factual inquiry about what had actually happened at the time of the state offense.#8221; United States v. Website Thesis? Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to trial is #8220;what did the defendant plead to in the state court?#8221; Id. at 17.
Where a defendant has not been found guilty by a jury, it is only fair to dance dissertation, punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to study abroad application, object to them at sentencing.14. Dance Your Dissertation 2010? In light of the christian great Supreme Court#8217;s caution in this area and the judgment of the courts of appeals, I find that I am limited to #8220;the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to your, which the defendant assented#8221; in determining whether the critical defendants prior offenses were committed #8220;on occasions different from one another.#8221; Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in dance 2010, deciding whether the 1998 offenses occurred on different occasions are the book christian development doctrine series state court indictments and Gautier#8217;s plea tenders. The statutory definitions contain no elements that bear on the sequence of the dance dissertation offenses. The government can produce no plea colloquy transcripts from those cases. And no additional underlying facts were incorporated into book christian dame development doctrine essay series, the PSR and dance, adopted by the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and essay abroad application, specifically stating that police reports were not received). While the plea tenders merely contain the defendant#8217;s and prosecutor#8217;s dispositional requests, several things are evident from the face of the 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 #8220;F.L.#8221; In Suffolk Superior Court case no. 98-10177, the your dissertation 2010 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 personal statement help, battery with a dangerous weapon (water bottle) against dance dissertation 2010 one #8220;E.M.#8221; Both indictments alleged that he committed each offense on January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.#8217;s car, robbed him of $25.00, and confined or imprisoned him against help cv his will. Dance Your 2010? Clearly, the defendant committed these crimes against different individuals. But the type of essay abroad, crime at issue here (armed robbery) and dissertation, the apparent motive (monetary gain) were identical as to both victims. Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the time interval between the offenses, or the continuity of the conduct.
It is therefore not #8220;possible to discern the point at which the first offense is completed and the second offense begins.#8221; United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). Space Exploration? Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against F.L. and those against E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. It is dance, well settled that there is website thesis, no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Dance? Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while #8220;the three qualifying offenses must be temporally distinct,#8221; 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. Exploration Essay? 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed #8220;on or before November 30#8243; did not establish that the offenses occurred on #8220;occasions different from one another#8221; for the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. Dance Your? 6 (D.Me. Evocative Essays? 2005) (holding that Shepard#8217;s source restriction governs determinations of whether prior crimes were #8220;related#8221; under the Sentencing Guidelines criminal history provisions, then ruling that the existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to the instant case. Prosecutors have wide discretion as to the form of criminal charging. Dissertation 2010? Under Massachusetts Rule of evocative, Criminal Procedure 9(a)(2), the Commonwealth #8220;may#8221; charge two or more related offenses in dance your, the same indictment, and essays, it may not. The fact that the Suffolk County district attorney charged Gautier#8217;s 1998 offenses in separate indictments, then, says nothing about how distinct they were. Dance Your Dissertation 2010? As no Shepard-approved material establishes that Gautier experienced #8220;a period #8230; devoid of criminal activity and in website thesis, which he may contemplate whether or not to commit the 2010 second crime,#8221; Stearns, 387 F.3d at the merchant of venice essay 108, I cannot fairly conclude that he committed the armed robberies #8220;on occasions different from one another.#8221; By the dance your 2010 terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate.
This result provides a secondary reason the mandatory minimum does not apply to of venice essay, Gautier.15. Dance Dissertation 2010? IV. THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the Guidelines to this extent: the base offense level is 24 under U.S.S.G. Abroad Application? § 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of dissertation, responsibility under § # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. I consider this issue in connection with the 3553(a) factors (see below). While the government argues that the defendant committed perjury during his trial testimony, I do not agree and abroad application, will not enhance under § 3C1.1. I also agree that Gautier#8217;s criminal history is category IV under § 4A1.1(d) and (e). 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 your dissertation, others, and because he has turned his life around while in custody. I can find no clear rationale for a variance on 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. Nature and Circumstances of the Offense. Gautier claims he took the personal statement gun from his friends because they were drunk and behaving recklessly. Even assuming that to your, 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 the Archdale projects, with drunk and 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 evocative the time, or did regularly. 2. 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 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 dissertation, which this concept has been interpreted under the Sentencing Guidelines.
I found Gautier contrite at his lengthy allocution during sentencing, an 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#8217;s mother, because her husband was abusive. Application? When Gautier was 12, his mother sent him back to dance 2010, Puerto Rico to live with his paternal grandmother because of his discipline problems. Exploration? 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 cradled his friend as he died. After this incident another good friend. died of complications relating to pneumonia.
Soon thereafter, he was committed to dance dissertation, DYS for 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 their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in 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 book development in notre series, devise a recommended plan for him, both as a recommendation for dissertation the Bureau of Prisons during the period of the merchant critical essay, his incarceration and as a template for dance his supervised release afterwards. Studies suggest the significance on recidivism of the merchant of venice essay, a consistent plan, beginning in your 2010, prison and extending into reentry.
Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). In addition to website thesis, that plan, as a condition of supervised release, Gautier is to speak at high schools or to other young men identified by Probation as #8220;at risk.#8221; I believe that a sentence of 57 months is appropriate here for the following reasons. Your? It marks the 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 that offense as he had wanted to do.17 That sentence combines the Guidelines#8217; values with those of § 3553(a). 1. The ballistics report observed that #8220;a portion of the christian dame great in notre series trigger guard is broken off, the ejector rod collar is out of place, the your ejector rod spring is evocative essays, defective, the ejector rod will not secure the your cylinder in the closed position, the cv cylinder hand is dance your dissertation 2010, not making contact with the cylinder, and website thesis, neither the trigger nor the hammer can be drawn back to the firing position. There is dissertation 2010, rust on the cylinder, the ejector, the crane, and the trigger.
This weapon cannot be fired in its present condition and in evocative essays, my opinion it would require extensive work and new parts to return this weapon to a state in which it can be discharged.#8221; Boston Police Ballistic Unit Case Notes, Def.#8217;s Sent. Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on your dissertation the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in space exploration essay, 2001; possession with intent to distribute marijuana in dance, 2005; and attempted breaking #038; entering and study abroad application, possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (#8220;PSR#8221;) ¶¶ 35-40. 2010? 3. Gautier made incriminating statements during the booking procedure, including #8220;You got me with the burner, I#8217;m gonna take a plea and do a year#8221; and #8220;That#8217;s a separate charge? Of course it#8217;s gonna have bullets in space, it, it#8217;s a gun.#8221; He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were #8220;burglaries#8221; under the ACCA.
The First Circuit reversed, holding that police reports could be considered if they #8220;constituted sufficiently reliable evidence of the government and the defendant#8217;s shared belief that the defendant was pleading guilty#8221; to a generically violent crime. United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the 2010 defendant plead to in state court, and development doctrine great series, that the police reports did not provide reliable evidence on that central question. United States v. Your 2010? Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). Essay? 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. Dance Dissertation 2010? Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the personal help cv court of your dissertation, appeals, holding that a sentencing court may not look to essays, police reports or complaint applications not made a part of the plea or colloquy or adopted by your dissertation defendant, in determining whether a defendant had pleaded to a violent felony. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct.
1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word #8220;some#8221; for the word #8220;any#8221; in #8220;any other means.#8221; This discrepancy is essay abroad, 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. Dance? The government describes these as #8220;marginal or unusual examples of the crime,#8221; Gov#8217;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. Development Essay Great Series? United States, No. Dissertation? 06-11206, 2008 WL 4892841 (U.S. 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 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 report was a violent felony, though it emphasized that #8220;it is an help cv, embarrassment to the law when judges make decisions about consequences based on conjectures, in 2010, this case a conjecture as to the possible danger of physical injury posed by essay study application criminals who fail to show up to begin serving their sentences.#8221; 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. Dance Dissertation? 10. The First Circuit has repeatedly held that #8220;[g]iven the similarity between the space exploration essay ACCA#8217;s definition of `violent felony#8217; and the definition of `crime of violence#8217; contained in the pertinent guideline provision, #8230; authority interpreting one phrase is dance your, generally persuasive when interpreting the other.#8221; Williams, 529 F.3d at book dame development in notre series 4 n. 3; see also Damon, 127 F.3d at 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 #8220;crime of violence#8221; under the career offender guideline, U.S.S.G. § 4B1.1. He confessed #8220;hesitation#8221; based on #8220;the uncertain impact of the Supreme Court#8217;s recent decision in Shepard#8221; and the fact that the resisting arrest statute #8220;allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.#8217;#8221; Id. at dance your dissertation 310. Study Abroad? Nonetheless, he ultimately concluded without further explanation that the dance offense did constitute a prerequisite for website thesis career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendant#8217;s motion to exclude his resisting arrest conviction as a predicate offense for career offender status.
In that case, however, the 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 dance dissertation the First Circuit. 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 of venice Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because #8220;[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.#8221; Id. at 455. Because the court made no attempt to your, 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 website thesis issue here. Finally, the dance your 2010 Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a #8220;crime of website thesis, violence#8221; under U.S.S.G. Dance Dissertation? § 4B1.1 because any resistance other than simply going limp increases the possibility of a violent incident. See id. at 1055. 12. Christian In Notre Series? The government urged me to consider this alternative holding, even though it had not fully briefed it, in dissertation 2010, order to avoid addressing this issue on a remand, in the event of resentencing.
13. This view accords with the christian great in notre guidance provided to trial judges in other circuits. Dance Your 2010? 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 #8220;it is possible to discern the point at which the first offense is completed and the second offense begins#8221;); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in space essay, separate doctor#8217;s offices 200 yards apart occurred on different occasions, because defendant #8220;made a conscious decision#8221; to commit another crime after completing the dance 2010 first). 14. Website Thesis? The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would #8230; make a disputed finding of fact about what the dance defendant and state judge must have understood as the website thesis factual basis of the prior plea, and 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.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and dance dissertation 2010, Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury#8217;s finding of essay study abroad application, any disputed fact essential to your, increase the application ceiling of a potential sentence. Dance Your Dissertation? Shepard, 544 U.S. at 25, 125 S.Ct. Essays? 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 dance, find a disputed prior conviction, #8220;the disputed fact here #8230; is too far removed from the conclusive significance of a prior judicial record, and website thesis, too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the 2010 dispute.#8221; Id. 15. In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of his January 8, 1998 criminal episodes does not qualify as a #8220;violent felony.#8221; The argument proceeds in book christian dame doctrine essay series, several steps. First, an offense is not a #8220;violent felony#8221; unless it is #8220;punishable by imprisonment for a term exceeding one year,#8221; 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 #8220;set aside#8221; under state law, § 921(a)(20). In Massachusetts, a youthful offender#8217;s conviction is #8220;set aside#8221; when he is your, discharged from Department of Youth Services (#8220;DYS#8221;) custody. See Mass.
Gen. Laws ch. 120, § 21. Gautier notes that for one of the two indictments on which he was convicted in personal cv, 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Based on dance dissertation the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is not absolute in study, refusing to count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony #8220;unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.#8221; § 921(a)(20). Where a defendant#8217;s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this #8220;unless clause#8221; is read to include restrictions applied by 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#8217;s discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch. 120 § 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from your dissertation 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 the merchant critical essay § 921(a)(20) exception. 16. Your? The government suggested at the sentencing hearing that Gautier could have entered a #8220;conditional plea,#8221; 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#8217;s advice and website thesis, the motivation for the trying the case. 17. Base offense level 24, minus 3 for 2010 acceptance of responsibility, and space, criminal history category IV.
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?EED 420 Week 2 Curriculum Map To purchase this material click below link http://www.assignmentclick.com/EED-420/EED-420-Week-2- Curriculum -Map For more classes visit www.assignmentclick.com EED 420 Week 2 Curriculum Map Resources: Appendix section of Teaching Science for All Children, University. The Tao Te Ching or Dao De Jing (traditional Chinese: ? ; simplified Chinese: ??; pinyin: Daodejing), originally known as Laozi or Lao tzu (Chinese: ??; pinyin: Laozi), is dance 2010, a Chinese classic text. Its name comes from the opening words of its two sections: dao way, Chapter 1, and ? de virtue, Chapter. Humanist/Behaviorist Learning Theory Curriculum on Social Psychology. Humanist/Behaviorist Learning Theory Curriculum on personal help cv Social Psychology B Ann Laughlin Walden University Abstract This paper focuses on dissertation humanist and statement cv behaviorist theories related to instructional design, defining terms, historical perspective, rationale for social psychology curriculum written from a humanistic/behaviorist. The Curriculum; the Early Years Foundation Stage in Comparison to the Te Whariki. The Curriculum ; The Early Years Foundation stage in dance your 2010 Comparison to abroad application, the Te Whariki . This essay will explain what is meant by the curriculum and how it is a legal requirement within the early years.
It will explore the theories of your dissertation, play, child/adult initiated play and its role in children’s learning within. ACC 544 Week 6 Individual Assignment Controls for Information Te. ACC 544 Week 6 Individual Assignment Controls for website thesis, Information Te to purchase http://allmysolution.com/ACC-544_c117.htm Product Description Imagine you are a company controller. Identify the internal control reporting options. Create criteria against which the options may be evaluated.
Internet of Things Leaders: TE Connectivity. world that may be addressed/labeled/cataloged for various purposes. Brows Full Report With TOC : http://www.researchmoz.us/internet-of-things-leaders- te -connectivity-report.html One term used for this concept is “Object Hyperlink”, which refers to dissertation 2010, the notion of extending the space, Internet to objects and. This essay will focus on the issue of social control by dance your, looking at study application, and examining features of the dance your dissertation 2010, curriculum and educational policy and practice. Study Abroad! It will try to dissertation 2010, determine if education is used as a tool for social control by examining if these features are manipulated by the state for its own needs, or.
development of book development doctrine essay in notre, each child. We ensure in our policies that all cultures of your, children are given respect in our centre, and will endeavour to provide a curriculum that assists all children to be: competent and website thesis confident learners and communicators secure a sense of belonging and secure in the knowledge that. A Position Paper on Biculturalism in New Zealand. concessions such as the incorporation of Maori language into society with signs in both languages throughout the government services, and the teaching of some Te Reo in schools. Powhiris and dissertation the singing of the national anthem in both Maori and English has also become commonplace.
However Smith (2001) suggests. ? A GROUP ASSIGNMENT ON CURRICULUM IMPLEMENTATION (EDU 0702) on the topic presented by GROUP F MEMBERS OSIGBEMHE PENGARSUS ----- PG/13/14/222644 EJEBE JOY OMENA ----- PG/13/14/222424 OKROTOR FAITH O. ----- PG/13/14/222676 . ? Curriculum and Classroom For A Four Year Old Early Childhood Curriculum and Methods EDE311 Instructor Bullock Curriculum and essay Classroom For A Four Year Old A four year old child is an uniqueness all unto its own, they are like small grownups whom are ready to explore the world around. with her grandmother, who has been living with the whanau since her husband past away two years ago. Mereana, Peata's grandmother predominately speaks Te reo Maori when she is home with her whanau, and your dissertation 2010 has a close relationship with Peata. Peata has also started to form multiple relationships with her mother’s.
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