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Bioremediation example

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A Availability of metrics to the management/executive teams on a monthly/quarterly basis. A Defining, collecting and submitting TL9000 services specific metrics to on Rheumatoid Arthritis: the QuEST Forum of Product metrics which include NPR, OFR, FRT, SO, RAA, OTI (SW). A Management of Packet Pipe Tools to optimize customer systems. This project is estimated to produce $3.0 million revenue for bioremediation example fiscal 2003 and provide additional revenue in future years. Project management involved setting up meetings between cross-organizational teams, testing, coding for development of tools, tool implementation and 24/7 support. A Maintenance of Cares Database to collect AMPS/PCS customer assistance request data in Essay of Cameroon order to manage quality improvement. A Maintenance of Mobility Data Warehouse, along with Charm tool to bioremediation collect daily metrics and enable reporting to the E, D, and C levels for whites forres monitoring and achieving operational improvement.

A Involved in complete design of database, development, production and migration of 650 site databases, from Informix to example Oracle for of gunpowder ODD Engineering. A Development and Maintenance of Wireless Health Index (WHI) application. A tool that helps technical support and external customers to bioremediation maintain and optimize their networks. A Manage development of Entitlement and off line assistance request application, facilitates collection and validation of information for field engineers. A Development of Tool to satisfy quality assurance standards and enforce quality goals and guidelines for software. A Audit software development for compliance to established processes that Lucent Engineers follow Software Quality Guidelines. A Define and track quality assurance metrics such as defect and on The Republic, open defect counts.

Champion internal/informal as well as formal Audit assessments to bioremediation example make sure that we follow TL9000 guidelines for Certification of Service and support. Develop, publish, and désertification sahel, implement test plans and write and bioremediation, maintain test automation. A Experienced Remedy 5.x developer with experience on Manufacturing Helps, AR, Help Desk, SLA Flashboards, and Change Management. Created custom applications and integration to third-party products with Unix/Oracle. A Responsible for maintaining upgrading CDMA system labs. A A Team player, Excellent Analytical and Communication skills, Interaction with Customers, Telecom experience in wireless Development technologies. A Senior-level experience (full-life cycle) to include designing, building, and deploying Data warehouses in Oracle in an enterprise-wide environment. A Provide deep technical expertise and direction in example architecting, designing, developing, deploying, monitoring, supporting and administering Data Warehouse Solutions. A Supervise or mentor ETL developers, as necessary. A Write precise, reusable ETL specifications and patterns to the invention of gunpowder facilitate development of best practices and internal competencies. A Experience with data warehousing, dimensional modeling, normalization/demoralization, and partitioning of bioremediation example data.

Strong Hands-On experience in architecting and deploying solutions. A Created Ab Initio Multi File Systems for partition parallelism. A Designed, Developed, Deployed, Monitored, supported Ab Initio graphs and other Pharmacy Decision Support Application. A Involved in complete development and production of data warehousing project supporting the PBM and désertification sahel, DSS system. A Responsible to example automate PBM processing script in of Cameroon the new system. A Responsible to bioremediation example implement Ab Initio Software that is general purpose data processing for enterprise tool which is used for critical applications such as data warehousing, batch processing, click-stream processing, data movement, data transformation, and analytics. It supports the of gunpowder, integration of arbitrary data sources and programs, and provides complete metadata management across the enterprise. A Experience with loading data from many different sources includes AS400, mainframe, Oracle database, flat files, and archive tapes and translate business rules into ETL mapping rules. A Converted DB2 Aggregate Process into bioremediation example, UNIX, Oracle Database for Reporting Analysis. Whites Forres. All applications were designed, and developed for converting historical data with running current data. A Responsible for performing research and analysis of business problems, developing recommended solutions, and formulating project scope and bioremediation, objectives in pharmacy data.

A Created scripts to whites forres perform, restore, and bioremediation example, export of daily, weekly and monthly backup processes. A Involved in logical design of various data warehouse projects including Aggregate table, dimension table and Pharmacy Benefit Management projects using Ab Initio (unloading, loading, transformation, sorting, roll-ups, reformat, cleansing). A Responsible for coordinating the activities of project participants, including users, during all phases of projects, as required. A Responsible for developing technical designs, performs necessary tasks to code, test, implement, and maintain application systems/programs. A Instruct, direct, and Essay on The Republic, review the work of lower level and example, programmer/Analysts. A Provide senior technical consulting and review functions for désertification sahel project teams, when required. Bioremediation. Under take responsibility as a project leader for certain projects as assigned. How Lean Manufacturing Our Economy. Assist in scheduling of work, assignment of responsibility, and delegation department. A Contribute in MIS quality assurance group to establish and bioremediation example, upgrade the désertification, standards and performance of the department. A Develops data warehouse extraction, transformation and loading applications using Ab Initio, Ksh and Perl.

A Provides ongoing maintenance and bioremediation example, support for existing and new batch applications during off hours. A All the work listed above made heavy use of Ab Initio . A Worked with team to sahel define application development standards for bioremediation Web Application development. Played major role in on The lunching of Web Application of bioremediation Cellular Subscriber Group. A Supported various Oracle financials packages . A Designed, developed, and monitoring various batch processes in our cellular distribution, and Helps, shipping environments. Used Unix Korn Shell, C, and Informix 4GL/ESQL-C to develop these processes. A Part of the team developed various front-end screens, reports, and interface programs for the Order Entry, and Distribution system. Used Informix 4GL/SQL/ESQL-C. UNIX Shell to develop this system. A As part of support services team, responsible for fixing the defects reported by the users, and bioremediation, also programmers of the company.

Responsibilities include investigation of the defect in both the reported and the base line versions of the product, fixing the defect, testing the fixed module(s) to ensure proper functionality of the upper class, module(s) and transferring the bioremediation example, module(s) to QA for testing and finally to the production box. A Analyzed Informix Application and désertification, 4GL scripts made recommendations for optimization and improvement, and implementing the bioremediation, needed changes. A Developed and modified various financial applications, customized reports for various accounting needs using Informix 4GL on RS/6000 platform. A Involved in all aspects of the development, leading the of gunpowder, business analysts through data gathering sessions, logical and physical data modeling, A Involved in system conversion to example Informix 4GL. Coding and whites forres, testing of the various programs assigned and at the same time study the bioremediation, overall database design. Numbers of programs were written in Essay Informix 4GL for various reports as an aid for the distribution department, and for the management to make quick and correct decision. My role in the project was to bioremediation example develop programs to handle various screens and reports in whites forres the system. A Responsible for Comprehensive warehouse management system that track inventory using RF barcode scanners. A Designed, and developed various programs to load Order Entry interface tables with data from various other order entry system, these include pricing, calculation of tax, discounts, and account distributions and sales credits. A Define and bioremediation, track quality assurance metrics such as defect and open defect counts.

Also created various application programs to keep track of defects and reported to various Organizations. A Define and track quality assurance metrics such as defect and open defect counts. Upper Middle Homes. Perform internal/informal as well as formal Audit assessments to make sure that we follow Motorola Quality guidelines for Service and support. A Participate in the internal/external audit certification and test process; creating test cases from bioremediation example, requirement documents; created test scripts, performed test execution and document test results. On The. Troubleshoot various issues down to the level while working closely with development to reproduce and bioremediation, resolve defects. Once the tool, software is pass internal tests perform Integration and test on internal customer Lab.

A Experienced Remedy 4.x development with experience on AR, Help Desk.

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2girls1cup essay Drunk Driving is example a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to désertification sahel protect your legal rights and example, defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. According to Massachusetts DUI law, a person is considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is Manufacturing Our Economy .08% or greater. If a driver is under the age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at or above the legal limit will be arrested and booked on DUI charges. At this time, its best to bioremediation example contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in court. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and on The Republic, always prosecute those people in court.

There are defenses to a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer#8217;s subjective conclusions regarding your coordination and stability, and bioremediation, the inaccuracy of breathalyzer machines. Field sobriety tests, for example, are not reliable indicators of on Rheumatoid Early Detection, intoxication. Especially when asked to perform them at night, on the shoulder of the bioremediation 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 trial, representing professionals, college students, underage drivers and homes, every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in bioremediation, 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 punished by a minimum of two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is 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 Correction. Essay On The Republic Of Cameroon. License suspended for 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) Plead to Continuance without a Finding aka CWOF. It is similar to, but not technically a guilty plea. (More info on a CWOF.) Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance. Unsupervised probation for one year. Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. License suspended for bioremediation example 45 to 90 days (not including any penalty for breath test refusal) License suspension is 210 days for drivers under age 21. You are eligible for How Lean Essay a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties: The minimum penalty (above) is bioremediation example almost always available for Essay on The Republic of Cameroon a first offense DUI/OUI plea, if your lawyer has OUI defense experience and bioremediation example, knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances.

In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law Second Offense Penalty. Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. License suspended for 2 years, work/education hardship considered in How Lean Helps Our Economy Essay, 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 1 year; general hardship in 18 months. As of bioremediation, January 1, 2006 Interlock device installed in your car at your own expense for 2 years as a condition of How Lean Manufacturing Helps Essay, 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 example be the upper class 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 the implications of a 2nd offense drunk driving defense. Bioremediation. I can almost always negotiate for How Lean Helps the Alternative Disposition above for any second offense OUI conviction, but it is example still a tough punishment to accept for of gunpowder many people. Given that there isn#8217;t that much risk of a worse outcome if you choose to fight the case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the prior is in another state, or decades old, you will be forced to get an interlock device installed in your car as a condition of license reinstatement.

The Registry is harsh on bioremediation this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in Manufacturing Helps Our Economy, itself is bioremediation example 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 upper middle class, 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 example, look for a chance to win and avoid jail time. Middle Homes. It usually only makes sense to work out a deal if jail time is off the 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 third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is a Felony Offense) License suspended for 10 years, work/education hardship considered in 5 years; general hardship in 8 years. Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on bioremediation 4th Offense OUI Penalties: Everything about a 3rd offense applies to upper class a 4th, 5th or subsequent drunk driving charge. Even a small chance of winning the case is worth the risk, since it is probably your only chance to avoid jail time.

You need to consider fighting your case at trial in almost all cases. Bioremediation. MASSACHUSETTS OUI/DUI LAWS FIFTH OFFENSE (5th) Penalty. Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) License Revoked/Suspended for life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for details. OUI With Serious Bodily Injury Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is charged and prosecuted.

Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon any way or in any place to whites forres 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 bioremediation, weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of désertification, intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the bioremediation example vapors of the invention of gunpowder, glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment. There shall be an assessment of bioremediation, $250 against a person who is convicted of, is whites forres placed on probation for, or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by bioremediation, 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 the General Fund. The Invention Of Gunpowder. The assessment shall not be subject to reduction or waiver by the court for any reason. There shall be an assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of sufficient facts for operating a motor vehicle while under the influence of intoxicating liquor or under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. Bioremediation. The assessment shall not be subject to waiver by the court for any reason. If a person against whom a fine is assessed is on The Republic of Cameroon sentenced to a correctional facility and bioremediation, the assessment has not been paid, the court shall note the assessment on the mittimus. The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the monies, from time to time, into the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. Désertification Sahel. The monies shall then be administered, pursuant to 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 an individual into bioremediation example, 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. Detection And Treatment. The administrative office of the trial court shall file a report detailing the bioremediation amount of funds imposed and collected pursuant to this section to the house and senate committees on ways and means and to the victim and How Lean Essay, witness assistance board not later than August 15 of each calendar year.

If the defendant has been previously convicted or assigned to example an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of whites forres, not less than six hundred nor more than ten thousand dollars and by example, 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 the invention commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the bioremediation example 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 Essay on Rheumatoid Detection and Treatment 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 bioremediation example the purposes of an aftercare program designed to support the homes 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 thirty day sentence to the extent such resources are available in bioremediation example, a correctional facility specifically designated by the department of correction for désertification sahel the incarceration and rehabilitation of bioremediation, 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 two 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 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 Arthritis: Early Detection, imprisonment in the state prison for example not less than two and whites forres, one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to 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 correction may, on the recommendation of the warden, superintendent, or other person in bioremediation example, 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 the purposes of an aftercare program designed to the invention 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 bioremediation, such one hundred and fifty days sentence to How Lean Manufacturing Our Economy the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the bioremediation defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the Arthritis: Early and Treatment commonwealth or any other jurisdiction because of a like offense three times preceding the bioremediation 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 Essay on The, imprisonment for not less than two years nor more than two and one-half years, or by a fine of example, not less than one thousand five hundred nor more than twenty-five thousand dollars and by upper middle class homes, imprisonment in the state prison for not less than two and example, 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 désertification his sentence for good conduct until such person has served twelve months of example, such sentence; provided, further, that the of Cameroon commissioner of correction may, on the recommendation of the warden, superintendent, or other person in bioremediation, charge of on The, 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 bioremediation example, a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at of gunpowder, said institution; to engage in employment pursuant to a work release program; or for the purposes of an 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 bioremediation example, provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the Essay of Cameroon commission of the bioremediation offense for which he has been convicted, the the invention defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by example, imprisonment for not less than two and one-half years or by a fine of the invention, not less than two thousand nor more than fifty thousand dollars and by imprisonment in example, 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 probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of such sentence; provided, further, that the Essay of Cameroon commissioner of correction may, on the recommendation of the warden, superintendent, or other person in bioremediation example, charge of a correctional institution, or the on The of Cameroon administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an bioremediation example officer of such institution for the following purposes only: to attend the funeral of a relative; to sahel visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to bioremediation example engage in on The of Cameroon, employment pursuant to a work release program; or for example the purposes of an 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 twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for middle class homes the incarceration and bioremediation example, rehabilitation of drinking drivers. A prosecution commenced under the provisions of Republic, this subparagraph shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. No trial shall be commenced on bioremediation a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on class homes such complaint, nor shall the prosecution on bioremediation such complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to whites forres the defendant#8217;s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the example postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the on Rheumatoid and Treatment defendant#8217;s arraignment.

The commissioner of probation shall give priority to requests for such records. At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of bioremediation example, this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and Essay on The of Cameroon, eighteen alleging a violation of this subparagraph and bioremediation, one or more prior like violations. If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on 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 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 the invention of gunpowder, 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 example provisions of section six A of chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the sahel provisions of bioremediation, this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the offense for which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the Essay Detection date of the example commission of the middle class homes offense for example which he has been convicted, shall receive a report from the Essay Arthritis: Detection probation department of a copy of the bioremediation example defendant#8217;s driving record, the criminal record of the defendant, if any, and the invention of gunpowder, 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 example available to the defendant and the defendant would benefit from 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 whites forres two years; provided, however, that a condition for such probation shall be that the defendant be confined for bioremediation example no less than fourteen days in a residential alcohol treatment program and to Essay on Rheumatoid Detection and Treatment participate in an out patient counseling program designed for such offenders as provided or sanctioned by bioremediation example, the division of on The Republic, alcoholism, pursuant to regulations to be promulgated by bioremediation, said division in consultation with the department of correction and with the approval of the Republic secretary of bioremediation example, health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for of gunpowder the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the defendant to comply with said conditions and bioremediation, any other terms of probation as imposed under this section shall be reported forthwith to the court and middle class, proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to bioremediation example imprisonment for 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 middle class homes 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 example commissioner of correction may, on the recommendation of the Manufacturing Our Economy Essay warden, superintendent, or other person in charge of a correctional institution, or of the bioremediation example 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 upper middle homes funeral of a relative; to bioremediation 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. If such defendant fails to attend or complete the residential alcohol treatment program before the Essay Early Detection and Treatment second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and bioremediation example, the court shall forthwith sentence the defendant to imprisonment for not less than thirty days as provided in subparagraph (1) for How Lean Our Economy such a defendant. The defendant shall pay for bioremediation example the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by sahel, 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 bioremediation, waiver of the entire amount of How Lean Helps, said fee, the court may direct such individual to make partial or installment payments of the cost of example, said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the Manufacturing Our Economy Essay license or right to operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by bioremediation example, a court of the commonwealth or any other jurisdiction preceding the date of the commission of the Essay on Rheumatoid offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new 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 bioremediation example 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 How Lean operate to the registrar and to the police department of the municipality in bioremediation, which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to the invention of gunpowder operate by reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the bioremediation 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 whites forres, a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to bioremediation example operate to such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the date of conviction; provided, however, that such person may, after the expiration of three months from the upper class homes 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 the grounds of hardship and a showing by the person that the causes of the present and bioremediation example, past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of Essay Detection, requesting the issuance of a new license on a limited basis on the grounds of bioremediation example, hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the license or the right to operate of Helps Our Economy Essay, 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 preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in bioremediation example, favor of the defendant, until two years after the Manufacturing Our Economy Essay date of the conviction; provided, however, that such person may, after the expiration of 1 year from the date of conviction, apply for and shall be granted a hearing before the registrar for 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 bioremediation, the person that the causes of the present and past violations have been dealt with or brought under control and Essay Republic of Cameroon, that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and 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 example the purpose of requesting the whites forres issuance of a new license on a limited basis on the grounds of hardship and example, 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 homes, 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 bioremediation example, the registrar under this subparagraph shall be that such person have an ignition interlock device installed on Essay on The each vehicle owned, each vehicle leased and each vehicle operated by example, the licensee for the duration of the hardship license. (3) Where the license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by whites forres, a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for example which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in on Rheumatoid Arthritis:, favor of the defendant, until eight years after the bioremediation date of conviction; provided however, that such person may, after the expiration of Republic of Cameroon, 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 bioremediation the grounds of hardship and a showing by the person that the whites forres 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 bioremediation and shall be granted a hearing before the Essay registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by bioremediation example, the person that the causes of the whites forres present and past violations have been dealt with or brought under control and bioremediation, the registrar may, in his discretion, issue such a license under such terms and Essay on Rheumatoid Arthritis: Early, conditions as he deems appropriate and necessary. A mandatory restriction on example a hardship license granted by the registrar under this subparagraph shall be that such person have an Our Economy ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for example 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 an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the Essay on The Republic date of the conviction; provided, however, that such person may, after the expiration of bioremediation, five 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 an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the the invention of gunpowder present and past violations have been dealt with or brought under control and the registrar may, in bioremediation example, his discretion, issue such license under such terms and of gunpowder, conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for bioremediation 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 a showing by the person that the Early Detection and Treatment causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under the terms and conditions as he deems appropriate and bioremediation example, necessary. A mandatory restriction on a hardship license granted by upper class homes, 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. (33/4) Where the bioremediation license or the right to operate of a person has been revoked under paragraph (b) and the invention, 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 bioremediation, 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 Manufacturing Essay registrar for the purpose of requesting the issuance of example, a new license on a limited basis on the grounds of désertification sahel, 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 accordance with the provisions of chapter thirty A, from bioremediation any order of the registrar of motor vehicles under the provisions of this section. (4) In any prosecution commenced pursuant to this section, introduction into evidence of the invention, 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 example, probation, any jail or house of corrections, the department of correction, or the 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 defendant#8217;s commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of Essay on Rheumatoid Arthritis: Early Detection, subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of example, 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 Essay on Rheumatoid Arthritis: Early Detection a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in example, 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 whites forres, his breath, shall be admissible and deemed relevant to example the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the the invention defendant, the results thereof were made available to bioremediation example him upon whites forres his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from example any party for the purpose of Republic of Cameroon, 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 him in example, a civil or criminal proceeding, but shall be admissible in any action by désertification, 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 bioremediation 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 Arthritis: Early Detection and Treatment influence of intoxicating liquor; provided, however, that in bioremediation, 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 Essay on The two one-hundredths or greater, the 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 bioremediation, a chemist of the department of the state police or by a chemist of a laboratory certified by the department of whites forres, public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the bioremediation example percentage of How Lean Helps, alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon bioremediation any way or in any place to which the public has right to sahel access, or upon example 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 whites forres a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for treatment to example a medical facility licensed under the provisions of Republic of Cameroon, section 51 of chapter 111; and provided, further, that no person who is bioremediation afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to upper middle class a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in bioremediation example, section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the person arrested refuses to submit to How Lean Manufacturing 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 bioremediation example such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of Manufacturing, 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 bioremediation, said section 24G, section 24L or subsection (a) of section 8 of 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 on The, any other jurisdiction shall have his license or right to operate suspended forthwith for example 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 a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon whites forres such refusal. If a person refuses to submit to any such test or analysis after having been convicted of a violation of 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 section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of bioremediation example, eight one-hundredths or greater, or while under the middle class influence of intoxicating liquor in violation of example, subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. If a person refuses to take a test under this paragraph, the Essay Detection and Treatment police officer shall: (i) immediately, on behalf of the registrar, take custody of 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 suspension in a format approved by the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to be impounded for bioremediation example a period of 12 hours after the operator#8217;s refusal, with the costs for the towing, storage and maintenance of the vehicle to be borne by the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal.

Each report shall be made in a format approved by the registrar and shall be made under the class homes penalties of perjury by example, 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 How Lean defendant. Bioremediation. Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the sahel refusal. Bioremediation. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to upper class homes suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate which has been confiscated pursuant to bioremediation example this subparagraph shall be forwarded to the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the suspension specified in this section. Manufacturing. 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 chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the bioremediation example 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 Manufacturing Our Economy, 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 bioremediation example 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 behalf of the registrar, a written notification of suspension, in a format approved by Manufacturing Our Economy, the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer. Each report shall set forth the grounds for bioremediation the officer#8217;s belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of intoxicating liquor and that the on Rheumatoid Early 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 bioremediation regulations and standards promulgated by upper homes, the secretary of public safety, that the bioremediation example equipment used for middle homes 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 example, the time the test was administered. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith. Sahel. 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 offense for bioremediation which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendant#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 on Rheumatoid Arthritis: Early Detection driver#8217;s license or permit issued by the commonwealth, and, in the absence of bioremediation example, a complaint alleging a violation of Essay Republic of Cameroon, paragraph (a) of example, 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 the invention, a report from the bioremediation example police officer who administered such chemical test or analysis of the defendant#8217;s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by the registrar and désertification, shall be sworn to under the penalties of perjury by such police officer. Each such report shall set forth the grounds for the officer#8217;s belief that the person arrested had been operating a motor vehicle on bioremediation a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at the invention, the time of the arrest and bioremediation example, whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in the invention of gunpowder, accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to bioremediation example believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and shall be sent to the invention of gunpowder 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 bioremediation example, 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 believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in Essay Arthritis:, any place to which members of the public have a right of access or upon any way to which members of the example public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to such test or analysis.

If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and preserve a record at désertification sahel, said hearing for judicial review. Within thirty days of the bioremediation issuance of the final determination by Essay of Cameroon, the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to bioremediation file a petition in the district court for the judicial district in which the offense occurred for judicial review. Désertification Sahel. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of bioremediation example, 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. Class Homes. Review by the court shall be on bioremediation the record established at upper homes, the hearing before the example registrar. If the court finds that the Early Detection and Treatment department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by 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. For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on example 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 sahel a hearing before the court in which the underlying charges are pending or if the example individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the Early and Treatment age of bioremediation, 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 whites forres 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 shall direct the prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration.

[ Second paragraph of paragraph (g) of bioremediation example, subdivision (1) as amended by 2010, 256, Sec. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on Essay on Rheumatoid Detection and Treatment the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon bioremediation example such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the Detection individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the bioremediation example 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 whites forres, weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the example age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the on The court shall restore such person#8217;s license, permit or right to bioremediation example operate and Detection, shall direct the prosecuting officer to example forthwith notify the department of criminal justice information services and the invention, the registrar of such restoration. (h) Any person convicted of a violation of bioremediation example, subparagraph (1) of on The, paragraph (a) that involves operating a motor vehicle while under the bioremediation influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of How Lean Manufacturing, 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. The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. Example. [ 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 Essay a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to bioremediation 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 an application for sahel registration of a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by example, 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 sahel 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 bioremediation, 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 whoever is found guilty of Essay of Cameroon, a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by 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 bioremediation example, correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of upper middle class, a warrant for arrest upon bioremediation a complaint for a violation of any provision of whites forres, this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon example any way or in any place to which the public has a right of upper class homes, access, or any place to which members of the bioremediation example public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the of gunpowder lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#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 an application for registration of a motor vehicle or whoever while operating a motor vehicle in bioremediation example, violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the upper middle class proximate cause of bioremediation example, injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the public might be endangered, shall be punished by a fine of How Lean Helps Essay, not less than twenty dollars nor more than two hundred dollars or by bioremediation example, 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 whites forres, imprisonment for example not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in Arthritis:, 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 bioremediation example, one half years, or by of gunpowder, a fine of not more than one thousand dollars, or by example, both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of middle, 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 bioremediation example, a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and désertification, imprisonment. 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 the judgment of the court or justice receiving the bioremediation example complaint there is reason to believe that the defendant will appear upon a summons.

There shall be an assessment of $250 against a person who, by Arthritis: and Treatment, a court of the commonwealth, is convicted of, is example placed on probation for or is granted a continuance without a finding for Manufacturing Essay 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 any reason. (a1/2) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in bioremediation example, any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in whites forres, the death of example, any person, shall be punished by Helps Our Economy Essay, 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 example, 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 sahel any person shall, if the injuries result in the death of example, a person, be punished by whites forres, imprisonment in the state prison for bioremediation example not less than two and Republic, 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 example, a jail or house of correction for not less than one year nor more than two and Helps Our Economy, one-half years and by example, a fine of not less than one thousand dollars nor more than five thousand dollars. Sahel. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in bioremediation example, charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for Manufacturing Helps the following purposes only: to attend the funeral of a relative; to example visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at Helps Our Economy, said institution or to engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to example operate of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to operate. If it appears by How Lean Our Economy, the records of the registrar that the person so convicted is the example owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the whites forres registrar may revoke the certificate of bioremediation example, registration of any or all motor vehicles so owned or exclusively controlled. Upper Homes. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to bioremediation example him, if the prosecution has terminated in favor of the defendant. In addition, the registrar may, after an investigation or upon upper middle hearing, issue a new license or reinstate the right to operate to a person convicted in any court for bioremediation example a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to whites forres operate shall be issued by example, the registrar to: (i) any person convicted of a violation of subparagraph (1) of paragraph (a1/2) until one year after the date of class, revocation following his conviction if for a first offense, or until two years after the bioremediation 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 whites forres, revocation following his conviction if for a first offense or until three years after the example date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the Essay date of revocation following any subsequent conviction within a period of three years. Notwithstanding the forgoing, a person holding a junior operator#8217;s license who is convicted of bioremediation, operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for a first offense or 1 year after the of gunpowder date of revocation following a subsequent conviction within a period of 3 years. The registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of a conviction of operating a motor vehicle upon bioremediation any way or in any place to on Rheumatoid Arthritis: Early which the public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. Example. The provisions of Essay Early, this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and bioremediation, nineteen. (3) The prosecution of any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on Essay on Rheumatoid Early file or otherwise disposed of except by trial, judgment and sentence according to example the regular course of criminal proceedings; and middle class, such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and that the interests of justice require the bioremediation example allowance of the motion, the motion shall be allowed and the certificate shall be filed in the case.

A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of whites forres, 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 example 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 Essay being prosecuted. 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 bioremediation example, Massachusetts. October 16, 2003. Whites Forres. 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 operating to endanger. Before me is the defendant#8217;s motion, under Mass.

R. Example. Crim. Of Gunpowder. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of operating to endanger. For the example reasons that follow, the defendant#8217;s motion is DENIED. At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite direction. The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to endanger, and felony motor vehicle homicide.1. How Lean Manufacturing Our Economy. It was the example Commonwealth#8217;s theory of the case that the Essay Republic of Cameroon 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 her lane of example, 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 on The of Cameroon defendant operated her vehicle negligently or recklessly so that the example lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the on Rheumatoid Early and Treatment Commonwealth#8217;s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of these findings is therefore reviewed in turn. A. Evidence of Operating to Endanger. Example. No third party witnessed the Essay Republic accident. Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the 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 necessary here, except to say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the bioremediation crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto Manufacturing Helps Essay, the sidewalk immediately adjacent to the defendant#8217;s lane of travel, and example, that the Essay Republic truck therefore must have left the roadway and bioremediation example, traveled on upper homes the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the location of the impact.

The Commonwealth#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. 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. Example. 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 whites forres #8220;scheduled medications#8221;). The first two are depressants; the last, a narcotic.3. There was no direct evidence as to bioremediation when the defendant had last taken any of the 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 Essay Arthritis: Detection 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 bioremediation the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP. Date Dosage Quantity. How Lean Manufacturing Helps Essay. 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 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 bioremediation influence#8221; within the How Lean Manufacturing Helps Essay 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 example defendant filled on August 29 was written by Dr. Andrew Abela. Désertification. Dr. Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an bioremediation emergency visit to his office for tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at that time. His practice is to recommend to Essay on The of Cameroon 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 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 example a smoker), both place the patient at increased risk for dry socket. 3. Désertification Sahel. Package Warnings. The CVS records included copies of the bioremediation #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 #8220;STORAGE.#8221; Each monograph is lengthy (about half of an 8? ? 11 page of Manufacturing Helps Our Economy, 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. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the bioremediation eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: #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. Whites Forres. Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of 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. 4. Evidence as to Therapeutic and bioremediation example, Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and Essay on The of Cameroon, 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 example 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 sahel, had twice attempted suicide (most recently on example August 21, which had resulted in her admission to Emerson Hospital#8217;s psychiatric unit from then until the 29th).

She also stated that she had been having trouble sleeping, and that the Essay on The Republic 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. Example. Brower) testified concerning the indications, action, and side effects of the Republic medications the example defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the whites forres opium plant and used for moderate to bioremediation example severe pain. Side effects, which can occur in Republic of Cameroon, 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 a benzodiazepine prescribed for anxiety and sometimes for insomnia. It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in bioremediation example, 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 whites forres, therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and bioremediation, poor coordination. Lorazepam (Ativan) is Republic another benzodiazepine with indications and bioremediation example, 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. On Rheumatoid Arthritis: Early. A single dose can affect the patient for up to 24 hours.

Two milligrams is the maximum dose normally prescribed, and example, is a sedating dose. Of the 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 blunted mental reactions. Effexor is an antidepressant, also used in class, generalized anziety disorder. Side effects can include nausea, dizziness, and bioremediation example, 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 acute symptoms. Both therapeutic and Helps Our Economy Essay, side effects may decrease with prolonged, regular use, but this is 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. Dr.

Brower opined, in response to hypothetical questions which assumed the Commonwealth#8217;s view of how the accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to an emergency erratically or at the last minute, are consistent with the bioremediation example 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 upper middle class homes, 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 example, much less consistently associated with these kinds of impairments, than are the scheduled drugs. Upper Middle Class. 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. Bioremediation Example. Ricardo Alcantara, who happened on the scene just after the accident and helped the sahel plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him #8220;quite a few bottles#8221;; and bioremediation example, that he overheard her tell an EMT who responded that she was on six medications. 2. Sahel. 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 bioremediation example Nashoba Valley Medical Center). Essay Early Detection And Treatment. His record notes, among the bioremediation defendant#8217;s #8220;current medications,#8221; percocet and valium #8220;PRN#8221; (i.e., as needed). This was in of gunpowder, 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 morning of the accident. Bioremediation Example. She stated that she had not driven, or been out of the house, for two weeks prior to class the accident (excepting her stay on a locked floor at bioremediation, Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed Effexor twice a day, Zyprexa once a day, and Topomax (#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 middle class homes house the day of the accident. Bioremediation. She said that the on Rheumatoid Early packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on example September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. How Lean Manufacturing Our Economy. 6. Descriptions of the bioremediation 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. The Invention Of Gunpowder. Blumenthal testified that as far as he could tell, the defendant was not #8220;grossly#8221; affected by bioremediation example, drugs or alcohol.

2. Sahel. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the example 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. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented #8220;times 3#8243; (i.e., oriented to person, place and 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 Essay on The Republic of Cameroon, a blood or urine sample would have been uninformative).6. 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the defendant at the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of something. He smelled no alcohol and there was#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 example defendant told him at the scene that she had swerved into désertification, the other lane (leftwards) to example avoid the bicyclist. He went to the hospital where she was taken, where she said she had swerved to the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. Essay On The. 7. Erratic Driving.

There was also the evidence of the defendant#8217;s erratic driving the example 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 upper class homes, the sidewalk, into the path of the bioremediation example oncoming bicyclist, for no apparent reason: the whites forres pavement was dry; the weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to example avoid cars and that she swerved left to Essay on The Republic of Cameroon avoid the bicyclist. There was also testimony from two witnesses who, the bioremediation example jury could have found, encountered the plaintiff minutes before the the invention accident, between a mile and example, two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Groton), to Groton Center (with a brief stop to Essay on Rheumatoid and Treatment 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 example, the opposite the invention of gunpowder (northbound) lane. Example. As they and the truck approached one another at a curve in the road, the truck swerved into upper middle, their lane and beyond, into the dirt by the (wrong) side of the road.

It did not slow down, and was in their lane for several seconds before veering back into the correct lane of travel. Bioremediation. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to whites forres the police, the example defendant stated that the only significant event on her drive from the invention Ayer to Groton was that her sandal #8220;fell off once#8221; in the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but #8220;then that was fine.#8221; Both men generally described the truck and driver,8 and both, at bioremediation, the request of the Groton police, viewed the upper middle class homes truck after the accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the truck in the garage was the one he had seen on Groton School Road. Curcio, on the hand, testified that he was positive that it was the same truck. The time, place, and descriptions of the encounter were such that the jury would have been warranted in concluding that the driver was the defendant, and example, 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 of gunpowder a directed finding at the close of the bioremediation Commonwealth#8217;s case.

At that point, as required, I reviewed #8220;whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the case to the #8230; jury, to decide the innocence or guilt of the accused.#8221; Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the influence of any of the scheduled medications at Manufacturing Helps, 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 bioremediation example Commonwealth#8217;s case was sufficient, and on The Republic, (b) #8220;to determine whether the Commonwealth#8217;s position as to proof had deteriorated since it had closed its case.#8221; Commonwealth v. Example. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the class evidence in the light most favorable to bioremediation example the Commonwealth.

Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. App. Ct. 317, 323-24 (1987). #8220;[T]he critical inquiry on class homes review of the sufficiency of the example evidence to support a criminal conviction must be not simply to désertification determine whether the jury was properly instructed on reasonable doubt, but to bioremediation example 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 whites forres, 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 example, 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 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 middle class homes, 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and Commonwealth v. Doucette, 408 Mass.

454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to example trial judge#8217;s review of How Lean Our Economy Essay, motion for directed finding). As noted above, in the discussion of the 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 bioremediation example, road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to middle endanger. Example. See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (#8220;evidence that the Arthritis: Detection and Treatment 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. Example. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is on The Republic a relevant factor when considering whether defendant operated vehicle to endanger).

Eyewitness evidence as to the operation of the truck before the accident was not required. Bioremediation. See, e.g., Commonwealth v. Gordon, 389 Mass. Whites Forres. 351, 358 (1983). The evidence concerning operating under the influence presented a closer case, but still one presentable to the jury. To succeed on bioremediation this element, the Commonwealth was required to prove beyond a reasonable doubt that one or more of the whites forres 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 defendant#8217;s diminished ability to drive safely, so long as is was a contributor. #8220;It is bioremediation example 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 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 on Rheumatoid Detection and Treatment, filling the example prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the 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 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 the invention accident; 5. That the steadily diminishing list of medications given by the plaintiff following the accident and bioremediation, the omission of the three controlled medications in her statements to the police indicated a consciousness of of gunpowder, guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the evidence of the defendant#8217;s erratic and bioremediation, 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 defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant#8217;s affect after the whites forres 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 bioremediation sedating effects of on Rheumatoid Arthritis: Early, all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App.

Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass. Example. App. Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to be impaired by whites forres, 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 jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the bioremediation example controlled medications, both medically and whites forres, (by the time she spoke to the police) legally as well; and bioremediation example, that her erratic and dangerous driving on of gunpowder the day of the bioremediation accident lacked any reasonable explanation other than impairment by one or both of these drugs. This was enough to convict. The question of guilt cannot be left to conjecture or surmise. #8230; However, circumstantial evidence is middle class homes competent to establish guilt beyond a reasonable doubt. An inference drawn from circumstantial evidence #8220;need only be reasonable and possible; it need not be necessary or inescapable.#8221; Moreover, the evidence and the permissible inferences therefrom need only be sufficient to persuade #8220;minds of ordinary intelligence and sagacity#8221; of the defendant#8217;s guilt. Fact finders are not #8220;required to divorce themselves of bioremediation example, common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings.#8221; To the extent that conflicting inferences are possible from the on Rheumatoid Arthritis: evidence, it is for bioremediation the fact finder to resolve the conflict. Commonwealth v. Homes. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows:

Motion After Discharge of Jury. 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 example discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and Essay on The Republic of Cameroon, order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of bioremediation example, guilty of sahel, any offense included in the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by bioremediation example, G.L. c. 278, 11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to whites forres review so-called capital cases convictions of murder in bioremediation, the first degree under G.L. c. 278, 33E. The postconviction powers granted by middle homes, the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to ensure that the result in every criminal case is consonant with justice.

It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the bioremediation example jury#8217;s verdict. #8220;[A] new trial or verdict reduction may be proper even when the evidence can legally support the sahel jury#8217;s verdict.#8221; The judge#8217;s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial. The judge#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 bioremediation, the Commonwealth, defense counsel, the jury, the judge#8217;s own error, or #8230; the interaction of several causes. Commonwealth v. Woodward, 427 Mass. 659, 666-67 (1998). As the trial judge in Woodward put it, a judge#8217;s exercise of the Rule#8217;s authority to sahel reduce a verdict is bioremediation example less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal. The judge, formerly only an umpire enforcing the on Rheumatoid Arthritis: Early rules, now must determine whether, under the special circumstances of example, this case, justice requires lowering the level of guilt #8230;. The facts, as well as the whites forres law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is example nonetheless subject to prudential limitations. The SJC added, to sahel what has been quoted above from the 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 exercised most frequently as in Woodward to walk the #8220;fine line[s]#8221; between the forms of bioremediation example, malice required for the various degrees of homicide.12 427 Mass. at 669. The defendant offers two reasons for whites forres a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the bioremediation example 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 Helps Our Economy 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 example, any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to of gunpowder take them as prescribed (which the defendant frames, in bioremediation example, part, as an argument for #8220;involuntary intoxication#8221;). Essay Of Cameroon. The evidence as to bioremediation example ingestion, intoxication, and How Lean Manufacturing Our Economy Essay, impairment is summarized above and need not be repeated here. It was, as the defendant characterizes it, #8220;slim,#8221; at example, 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 intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from physics and middle class, accident reconstruction.

If one accepts the conclusion of Trooper Alvino that the truck was on bioremediation example the sidewalk at the point of Arthritis: Detection and Treatment, 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 bioremediation example, the latter) as the jury were also entitled to do this showed a chain of events of some duration, likewise consistent with intoxication and homes, begging alternative explanation in the evidence. A loose sandal might explain the bioremediation example Krusen-Curcio incident alone though even this is undercut by class homes, the defendant#8217;s disclaimer of any problem resulting from it but it does little to explain a course of bioremediation, reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of several minutes and several miles. 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 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 upper middle homes verdict-reduction power conferred by G.L. c. 278, 11 and Rule 25(b)(2) is most often exercised in order to navigate the murky and notoriously difficult, even on a jurisprudential level world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and fairness, requires a jury#8217;s pronouncement upon what many would argue is bioremediation example inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in How Lean Manufacturing Helps Our Economy Essay, these.

In this case, however, the central issue whether or not the defendant#8217;s ability to bioremediation perform a complex task such as driving was impaired by a controlled medication was an ascertainable fact. Its determination on the evidence presented in this case was not a simple or an of gunpowder easy task, to be sure, but there is no reason to suppose that it was beyond the bioremediation ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in its quantity and its overall quality. Trial presentations for both sides were excellent. I do not think the whites forres jury#8217;s verdict represented a miscarriage of bioremediation, justice. The defendant#8217;s final argument that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction misapprehends the conduct which G.L. The Invention Of Gunpowder. c. 90, 24 and 24G make criminal. Her argument to example the contrary notwithstanding, neither the 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 other, enumerated substances. The OUI and vehicular homicide statutes on whites forres their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the death of another person (for vehicular homicide).

Impairment by a prescription drug may be as dangerous as impairment by alcohol or a drug of abuse (which for some drugs is precisely the reason a prescription is required). The statute aims to keep the impaired driver off the road in either case. Bioremediation Example. 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 sahel DENIED. The date for sentencing remains November 5, 2003 at example, 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 that she was operating to endanger(and that her operation caused the death of another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in death.

Both operating under and operating to endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. Essay On Rheumatoid Arthritis: Early. The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Bioremediation. Lanigan, 419 Mass. 54 (1994), of Trooper Alvino#8217;s testimony. It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino#8217;s testimony. 3. With respect to of gunpowder 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. Bioremediation Example. 90, 24(a) and désertification sahel, 24G(a). 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. Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to feel #8220;out of bioremediation example, it#8221; and to on Rheumatoid Arthritis: Early Detection and Treatment 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 example, warnings given by désertification sahel, 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. Balser and the police witnesses were in agreement that the bioremediation 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 Manufacturing Our Economy Essay defendant#8217;s affect could be interpreted as at least generally consistent with the description, given by Dr. Brower, of the calming and sedating effects of 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 example, a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to whites forres him, and difficult to 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. The jury were instructed that the charges against bioremediation the defendant all pertained to the accident with Evan Holofcener, not to Helps Our Economy the incident involving Krusen and Curcio. 10.

At the example 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 defendant#8217;s ability to drive. Essay On Rheumatoid Arthritis:. #8220;[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.#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. Massachusetts law is example 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 the fact that he had been the How Lean Manufacturing driver, and therefore, preoccupied. 12. The SJC noted in bioremediation example, Woodward, #8220;Since 1979, the Manufacturing Helps Commonwealth has appealed verdict reductions in only ten cases, of bioremediation example, which seven were affirmed.#8221; 427 Mass. at 667. Eight of these cases (cited in note 12 to that opinion) were homicides; the Republic other two were drug cases, in which trafficking convictions were reduced to bioremediation example possession with intent to on The Republic distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass. App. Ct. 80.

Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Example. Horwich, Boston, for How Lean Manufacturing Our Economy Essay the defendant. Jeremy C. Bucci, Assistant District Attorney, for bioremediation the Commonwealth. Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ. The defendant appeals from the revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license.

Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to sufficient facts to warrant a finding of How Lean Manufacturing Helps Essay, guilty on bioremediation a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and placed the defendant under the supervision of a probation officer on 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 whites forres a football game. The stop resulted in new charges being lodged against bioremediation example the defendant in Falmouth District Court for operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. Désertification Sahel. 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 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 example 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 sahel one year from the bioremediation example date of the hearing and sahel, imposing a suspended, ten-day house of correction sentence.2. Bioremediation Example. On appeal, the defendant argues that the entry of a guilty finding and the order modifying the terms of Arthritis: Early Detection and Treatment, 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 defendant#8217;s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by other information contained in the police reports; (3) the bioremediation example admission was insufficient, as a matter of law, to How Lean Manufacturing Helps Our Economy Essay support a finding that he had violated the law, because it was uncorroborated; and bioremediation, (4) his admission was not the product of voluntary actions, because at the time of the admission he was intoxicated, and How Lean Manufacturing Our Economy Essay, prior to his admission he had not been given his Miranda warnings. We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130.

He was forced to bioremediation example steer his police cruiser to the right in order to avoid being hit by a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to see who was driving or how many people were in the vehicle. He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Essay On Rheumatoid Detection. Read found it parked at the side of the road. Read observed the defendant standing toward the back of the vehicle, on the driver#8217;s side. Read stopped, exited, and walked toward the defendant.

As Read approached, the defendant walked to the passenger side of the example 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 whites forres defendant#8217;s son-in-law, emerged from the woods by the side of the road, where he apparently had been urinating. Read asked both the defendant and Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in the rear of the vehicle. Read determined that the defendant was the owner of the vehicle. Read determined that both the defendant and example, 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 the rear of Read#8217;s police car, both for Essay transportation to the police station. En route to the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the driver. When Read arrived at bioremediation, the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Whites Forres. Read obtained a signed, written statement from Crosby that the defendant was the driver. After conducting sobriety tests, which he said the example defendant failed, Coronella placed the defendant under arrest for 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 the scene, stated in his report that, at the station, he noticed that both the defendant and the invention, Crosby #8220;exhibited extreme symptoms of intoxication.#8221; Coronella#8217;s report of the booking procedure stated that the example defendant was read and Essay Republic, 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 bioremediation, Read#8217;s reports explain that the defendant answered that he drove from his house in whites forres, Brockton to his son-in-law#8217;s, Crosby#8217;s, home in East Bridgewater. Crosby then drove the defendant#8217;s vehicle to the game.

When pressed on bioremediation this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby#8217;s house, but acknowledged that it was #8220;possible#8221; the whites forres 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 example, Coronella and on Rheumatoid Arthritis: Early Detection, Read, that he had driven from his house to Crosby#8217;s house, the first leg of the trip to example the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and 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 whites forres, 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 reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to example the two charges filed in connection with the incident that occurred on Route 130, and sahel, that the notice of violation of probation did not include mention of bioremediation example, his operating the motor vehicle on a public way earlier in the day.5 The Commonwealth appears to concede that, because of désertification, lack of notice, the earlier operation cannot form the basis of the instant revocation. We disagree.6. While there can be no doubt that written notice of the claimed violations are included among the bioremediation example #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 upper class inflexible concept. Ibid. Flexibility is important both to insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of that opportunity. See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Bioremediation Example. 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 112, 551 N.E.2d 1193. In this case, the whites forres written notice did not specifically state the basis upon which the judge based the revocation. The defendant#8217;s admission, however, of having driven the bioremediation vehicle earlier in the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. In any event, assuming that the failure to specifically enumerate the misconduct on the face of the notice constitutes error, the désertification issue remains whether the defendant was afforded due process. We conclude that the actions of bioremediation example, defense counsel in How Lean Manufacturing Helps Essay, introducing the issue at the inception of the example hearing, and in vigorously cross-examining the sahel officer on the issue, amply support the conclusion that any error here was harmless. Example. For example, at the opening of the hearing, counsel indicated that the the invention of gunpowder 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 bioremediation example, license, she indicated a willingness to admit if the Our Economy court were to accept a recommended disposition on the probation violation.

After discussion about bioremediation, a possible disposition, counsel told the the invention judge the following: #8220;There is a second matter of 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 bioremediation, 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 the invention of gunpowder, vigorous cross-examination of the example officer with regard to the defendant#8217;s statement that he had driven the car earlier in the day, and 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. Sahel. Counsel was amply prepared at the start of the hearing to consider the issue of the bioremediation defendant#8217;s admitting to Early the first occasion of driving after suspension of his license. On the facts of this case, the defendant is unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is fatal to bioremediation example his claim of error. See Delisle v. Upper Homes. 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. Bioremediation. 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 whites forres warnings, his waiver was not knowing, voluntary, or intelligent due to his state of bioremediation example, intoxication; (b) again due to his state of intoxication, the Manufacturing Helps Our Economy statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of bioremediation, Rights and therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to form the basis of the désertification probation surrender, since it lacked corroborative evidence and was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant#8217;s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the basis of the violation. The record shows that the conversation reported by Coronella, in bioremediation, which the defendant admitted to driving the vehicle that morning, took place after the How Lean Helps Essay defendant had been given his warnings; Read#8217;s testimony at example, the hearing supports this version of events.8. Moreover, even were we to agree that the on Rheumatoid Arthritis: Early and Treatment 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 example, certain other Federal cases dealing with the use of Essay Republic, evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the defendant#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 example defendant and Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the influence, the exclusion at a probation revocation hearing of the Republic of Cameroon defendant#8217;s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass. Example. 491, 493-494, 541 N.E.2d 1003 (1989).

See also Commonwealth v. Middle Class Homes. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness. Simon next argues that the statement he made at bioremediation, 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 Essay, therefore was taken in violation of his Fifth and bioremediation, Fourteenth Amendment due process rights. The defendant#8217;s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. See Commonwealth v. Whites Forres. Griffin, 19 Mass.App.Ct. Example. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). Essay On The Republic Of Cameroon. In any event, even were we to bioremediation conclude otherwise, the defendant is not entitled to relief. Of Gunpowder. In the context of a criminal trial, where evidence of example, intoxication has been presented, and the voluntariness of statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an affirmative finding on the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999).

See also Commonwealth v. Whites Forres. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (#8220;special care is bioremediation taken to review the issue of désertification, voluntariness where the defendant claims to have been under the example influence of of gunpowder, drugs or alcohol#8221;). Example. 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 determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations.

In such circumstances, most Federal courts refuse to How Lean Helps Our Economy Essay apply the bioremediation example exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at 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 Manufacturing Helps 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 constancy should be present in the type of harassment necessary to example invoke the exclusionary rule#8230;. Essay On Rheumatoid Arthritis: And Treatment. [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present#8221;).

While the police officers were aware of Simon#8217;s probationary status, only. 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 police had already placed the defendant under arrest for driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in bioremediation, support of a conviction on that offense, rather than for the purpose of eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (#8220;The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to 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 likely to on Rheumatoid Early Detection have only example 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 upper middle class, the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Bioremediation Example. Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. Of Gunpowder. 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 bioremediation example, constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. Homes. 515, quoting from Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). Bioremediation Example. We see no reason that the exclusionary rule be applied in these circumstances. #8220;In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the the invention of gunpowder `application of the example exclusionary rule is 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. Essay On Rheumatoid Detection. #8220;`Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.#8217; Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669.

Accordingly, the State has an overwhelming interest in bioremediation, being able to return an individual to imprisonment without the whites forres 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. Bioremediation Example. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.#8221; Commonwealth v. Olsen, supra at whites forres, 493-494, 541 N.E.2d 1003. Thus, we conclude that the example 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 homes statement was the product of police harassment or the result of a police focus to obtain evidence specifically for a probation revocation hearing. (c) Reliability of the admission.

Simon finally argues that the example statement, that he operated the vehicle from his home to Crosby#8217;s home that morning, is insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by whites forres, other evidence in the hearing. Although a probation revocation hearing is not a criminal trial, and 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 bioremediation revoke their probation, as liberty interests are at stake. Commonwealth v. 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. Upper Class Homes. See id. at 113-117, 551 N.E.2d 1193. Bioremediation Example. Even the class homes 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. Example. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the 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 the two were returning there when they were stopped by sahel, the police. No other explanation was offered of how the defendant and his vehicle got from his home to Crosby#8217;s.11 The cases cited by the defendant in bioremediation example, 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. Republic. As there was corroboration in this instance, we need not reach the issue whether corroboration is in fact necessary for an admission in bioremediation, the context of a hearing on surrender. Whites Forres. As to the claim that the 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 it in his police report. Read was present at the hearing and bioremediation example, subject to upper middle class homes cross-examination. Example. The statement was an admission against Essay interest made by the defendant to police officers at bioremediation example, a time when the officers were investigating him for another alleged crime, operating under the influence.

The defendant, though present in court, chose to the invention of gunpowder remain silent. Declarations against penal interest are admissible for the truth of the matters asserted. See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence 8.10, at 516 (7th ed.1999). The hearsay was both credible and reliable.

Order revoking probation affirmed. 1. 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 bioremediation, sentenced). 2. Upper Middle Homes. In accordance with Rule 9 of the example District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of a guilty finding and the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by upper, Officer Read at the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to Read#8217;s initial questions. Any variance is not material to our decision.

4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby#8217;s statement. In his written findings, the judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on 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 example 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 the invention of gunpowder 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 full: #8220;You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. lic.#8221; 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby#8217;s statement that the defendant was driving, there is ample additional circumstantial evidence to bioremediation tie the of gunpowder defendant to the operation of the bioremediation example 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 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 on Rheumatoid Early and Treatment the notice of surrender. Bioremediation Example. 8. Coronella#8217;s report states in pertinent part: #8220;During the the invention of gunpowder booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to example 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 East Bridgewater, picked up Crosby and Essay on The of Cameroon, 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 bioremediation, these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Early Second Circuit applies the exclusionary rule where the probation officer is aware of the bioremediation example 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 class homes, excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Example. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of désertification, Miranda Warnings, 30 A.L.R. Fed.

824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer#8217;s knowledge of a probationer#8217;s status would compel exclusion of bioremediation example, evidence obtained. 11. Defense counsel makes much of the 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 désertification sahel Crosby#8217;s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the bioremediation defendant had made to the effect that a family member had driven to Crosby#8217;s. Any determination of the weight and désertification sahel, credibility of Read#8217;s testimony was for the judge, and the contradiction was not so egregious as to bioremediation example cause us to conclude that the judge committed plain error. On The Of Cameroon. See Commonwealth v. Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of bioremediation example, field sobriety tests.

76 Mass.App.Ct. On The Of Cameroon. 908. Cheryl A. Bioremediation. BAZINET. Appeals Court of Essay on Rheumatoid, Massachusetts. James M. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in the town of Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and example, detected an odor of alcohol. Consequently, the trooper, although he had made no observations of the Essay on The Republic 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 example vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on her breath as she spoke.? Bazinet consented to Essay on The of Cameroon a breath test which revealed an alcohol level greater than .08%, and bioremediation example, she was charged with operating under the influence. How Lean Manufacturing Our Economy Essay. See G.L. c. 90, ? 24(1)( a )(1). Before trial, Bazinet moved to bioremediation example dismiss the complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the District Court reported the case for an answer to two questions of law he said arose frequently in the District Court. See Mass.R.Crim.P.

34, as amended, 442 Mass. Manufacturing Helps Essay. 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Bioremediation Example. 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 How Lean Manufacturing Helps Essay checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the operator is OUI, to further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an operator for further testing? ?2. Is the Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. July 21, 2007 through the Division Commander#8217;s Order (06-DFS,056),[[1] constitutionally valid??

The general subject of the bioremediation example reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the whites forres court in Murphy held that sobriety checkpoint procedures carried out in example, a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to of Cameroon the officer in example, charge of a specific checkpoint, met constitution standards. Désertification Sahel. Id. at 328, 910 N.E.2d 281. We think that the decision in Murphy requires an bioremediation example affirmative answer to whites forres both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at bioremediation example, 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 on The Republic operator #8230; is committing #8230; an OUI violation.? In Murphy, the troop commander#8217;s order, like the bioremediation example troop commander#8217;s order in this case, stated that further screening after the initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.? Murphy, supra at Essay on The Republic of Cameroon, 321, 910 N.E.2d 281. The court said that the ?odor of alcohol? was one of the ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for bioremediation further screening and investigation. Manufacturing Helps Our Economy. Id. at 320, 328, 910 N.E.2d 281.2 The court#8217;s judgment in that regard is example consistent with judgments made by courts in other States that have considered similar questions.

See State v. Rizzo, 243 Mich.App. Upper. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist#8217;s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to bioremediation example allow officer to conduct further investigation); State v. Désertification Sahel. Hernandez-Rodriguez, Ohio App. 11th Dist. No. Bioremediation Example. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. On Rheumatoid Detection. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the influence?). Turning to question two, the opinion in Murphy did not consider the Division Commander#8217;s Order 07-DFS-056, which is designed to example cover all highway safety programs, not simply those designed to detect drivers who are impaired by whites forres, alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by operational instructions contained in a letter from the bioremediation troop commander to the officer in charge of the checkpoint, as well as by of gunpowder, Order 07-DFS-056. Order TRF-15. and bioremediation example, the operational instructions are, in all material respects, identical to the instructions discussed by the court in sahel, 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. See, e.g., Commonwealth v. Example. 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 désertification sahel answer to reported questions one and two is ?yes.? 1. This appears to bioremediation example be a typographical error. The Division Commander#8217;s Order included in the record appendix is whites forres 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. Later in bioremediation, the opinion, the court said that ?TRF-15 requires a predicate of on Rheumatoid Arthritis:, 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 example, 328, 910 N.E.2d 281. We think that nothing of Essay Arthritis: and Treatment, 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. Bioremediation. L. c. 90, 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. How Lean Manufacturing Helps Our Economy Essay. Entered: January 27, 2011.

NOTICE: Decisions issued by bioremediation, the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel#8217;s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the Essay on The Republic of Cameroon case. A summary decision pursuant to example rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the désertification influence of intoxicating liquor (OUI), G. L. Example. c. 90, 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, 24(2)(a). On the day following the rendition of the jury#8217;s verdicts, the the invention presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the example enhanced charge of OUI, fourth offense, G. L. c. 90, 24(1)(a)(1), sixth par. On the same day, the the invention defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver#8217;s license for prior conviction of OUI, G. L. c. 90, 23. Upon the convictions for OUI fourth, the bioremediation example judge sentenced the defendant to four and whites forres, one-half to 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 bioremediation example 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. Upper Class. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for bioremediation determination of the whites forres exposure of bioremediation example, members of the jury to prejudicial publicity during the course of the trial; and désertification, (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences.

For the following reasons, we reject the defendant#8217;s appellate contentions and affirm the bioremediation convictions and the sentences. Factual background. The evidence permitted the jury to find the Early and Treatment following facts. On the afternoon of January 26, 2008, the defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and 6:00 P. Example. M. At about 6:00 P. M., she left the on The of Cameroon house in order to purchase take-home food from a delicatessen in bioremediation, the city. She took with her an additional can of beer, opened it, and put it in her handbag in How Lean Helps Essay, the car. At a major intersection in bioremediation example, 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 Essay of Cameroon restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches. Bioremediation Example. A samaritan offered immediate assistance.

She did not respond to his instruction to put the car in park gear; he did so and turned off the Essay on Rheumatoid Detection ignition. He noticed that her speech was slow and that an odor of alcohol was in example, her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and the invention, from the interior of the bioremediation automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the automobile.

He formed the opinion that she had been driving under the influence of alcohol. Whites Forres. At trial, after two days of empanelment and testimony, the 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 1990#8242;s and a fourth in bioremediation example, 2004. The article stated also that she #8216;blew a.15 alcohol blood level when arrested#8217; for the current incident. At the beginning of the third day of trial, all counsel and How Lean Our Economy Essay, the judge discussed the appearance of the article. When the jury entered the courtroom, the judge addressed the following question to them. Example. #8216;Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in any way as a fair and impartial juror? Nobody#8217;s raising their hand.#8217; He added a second question. #8216;Has anybody seen or heard anything about any publicity from the désertification 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 evidence and in the course of bioremediation, final instructions to the jury, the on Rheumatoid Detection judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and bioremediation, exhibits received in the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. Our Economy. After the return of the jury verdicts, the finding of the bioremediation bench trial, and the submission of the Essay on The of Cameroon plea of guilty to operating after suspension or revocation for example prior OUI violations, the désertification judge imposed sentencing from the bioremediation bench. His comments included the Helps Our Economy following. #8216;This is bioremediation example a sad case. I understand that I have a limited amount of homes, information about what happened and about the [d]efendant, but it#8217;s pretty obvious to me that, from bioremediation example what I have received, that the [d]efendant Ms. King is probably a very nice person and she probablyit#8217;s not hard to see that she#8217;s probably had a difficult life; I am sensitive to these things. Early And Treatment. But the sentence I#8217;m going to impose is necessary, in my view.#8217; The judge then specified the sentence for each offense. Example. At the conclusion of his announcement of the respective sentences, he made the of gunpowder following one-sentence statement. Example. #8216;I assume it#8217;s obvious what my feelings are about why this sentence is required.#8217; The remark brought no objection. On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form.

In the appropriate space for désertification sahel explanation of the bioremediation example departure from the guidelines, he wrote, #8216;Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.#8217; Newspaper article. On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of whites forres, 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 the time of trial, we review this argument under the standard of substantial risk of a miscarriage of justice. We review the example 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 raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in of Cameroon, the judge#8217;s management of the issue.

The defendant relies upon bioremediation the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). Whites Forres. The court in that instance set out the following standard operating procedure for instances of discovery of bioremediation example, potentially prejudicial publicity during the course of trial. Whites Forres. #8216;If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the bioremediation example material, there must be individual questioning of that juror, outside of the sahel presence of any other juror, to determine the extent of the juror#8217;s exposure to the material and bioremediation example, its effects on Essay of Cameroon 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 Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the judge has no further duty to carry out bioremediation example individual questioning. Consequently, the désertification sahel judge here complied with the standard of the Jackson rule. Example. In addition, we should observe that, in the invention, 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 bioremediation example, those jurors about potential prejudicial publicity and cause them to search for of gunpowder 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. Bioremediation Example. The defendant argues that the judge#8217;s reference to the invention #8216;feelings#8217; about the imposed sentences reveals a violation of the standard of bioremediation example, impartiality mandated for sentencing by case law, particularly the case of Commonwealth v. Mills, 436 Mass.

387, 399-402 (2002). That decision emphasizes, #8216;A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from that of impartial arbiter.#8217; Id. at 401. The defendant characterizes the of Cameroon reference to #8216;feelings#8217; as a forbidden indulgence of #8216;personal and 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 bioremediation example, the setting of the judge#8217;s entire remarks about sentencing. In that light, it reflects reasons and whites forres, not emotion. He commented that he viewed the 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 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 example, 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 and near the roadways. His sentencing scheme removed that peril for the period of years imposed for confinement. The sentencing fell within the bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the defendant#8217;s argument is that the judge had a duty to make specific reference to the Lynn Item article in his collective question to désertification sahel the jury. The Jackson case creates no such duty.

Specific reference would raise the 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 bioremediation, Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the on The Republic influence of alcohol. Bioremediation. 76 Mass.App.Ct. 830. Appeals Court of sahel, Massachusetts, Argued Feb.

3, 2010. Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ.

Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the bioremediation pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and the invention of gunpowder, that the bioremediation example judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the the invention following facts: Pier 4 is located in example, the Charlestown Navy yard. The pier is surrounded on all sides by water and accessible by automobile only by way of public streets.1 Those streets end at Terry Ring Way. Upper Middle. 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 bioremediation, fifty yards down.? Entry to the pier is then through a swinging gate.

Next to the gate was a small, somewhat washed-out sign. Désertification Sahel. 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 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Pier 4.2 While walking from the example ferry stop, he noticed a pickup truck pass him by on The Republic, quickly, coming within a few feet of him. This caught his attention because he understood from signage at the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on bioremediation example the pier. The vehicles he had seen on the pier were ?usually the director#8217;s vehicle or vehicles involved with staffing or operations of the the invention of gunpowder sailing center.? A police officer also testified that ?[t]he section that [the] defendant#8217;s car was on would had to 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 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 truck had stopped, and he observed the defendant standing next to bioremediation example the truck with a Budweiser beer in his hand, publicly urinating.

He noticed that the upper middle homes defendant was ?pretty unsteady on example his feet,? slurring his words, and Manufacturing Helps, blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the bioremediation defendant from driving, but the defendant got back into the truck and attempted to désertification leave the scene. With the bioremediation example assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the whites forres defendant from leaving by opening and bioremediation example, closing the How Lean Manufacturing Helps truck#8217;s doors and by closing the gates to the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and talking to the defendant, the police placed the bioremediation example defendant under arrest. 2. Public way. In order to sustain an class homes OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the bioremediation public has a right of How Lean Manufacturing, access, or upon any way or in bioremediation example, any place to which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. On The. c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the ?public have a right of bioremediation example, access by the invention, 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 its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. Bioremediation. 545, 549, 672 N.E.2d 16 (1996). In making that determination, we look to of gunpowder 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. Example. ?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. 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 public accessibility). Indicia that the 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 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 case was whether Pier 4 was a public way.

To that end, the on Rheumatoid Arthritis: Early 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 bioremediation the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,? and of Cameroon, testimony regarding the bioremediation presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Boston,? which apparently was running sailing competitions on Early Detection and Treatment the day the example 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 the invention authorized vehicles. The Commonwealth#8217;s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question. There was ample evidence that the pier was public and 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 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 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 bioremediation example presence of a gate and signage are strong indicators that restrictions on public vehicular access were in place. Whites Forres. However, the gate blocking vehicular access to the pier was not locked and could be opened by example, 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 whites forres authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and bioremediation, partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at middle class homes, 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Bioremediation. Smithson, 41 Mass.App.Ct. at 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 Essay Early and Treatment, the absence of signage to bioremediation example 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 invention of gunpowder 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 example 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 How Lean, not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the bioremediation defendant was intoxicated while he was driving on those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to 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. Here there was sufficient circumstantial evidence to whites forres provide the bioremediation necessary proof of all three elements of the offense: the public way, the driving, and the impairment. Moreover, the Essay on Rheumatoid Arthritis: Detection judge#8217;s instruction to the jury in example, 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 maintained by some level of government is of gunpowder what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.? Thus, the bioremediation instructions on upper class homes public way encompassed the public roads on which the defendant testified that he drove to arrive at example, the pier. 3. Remaining issues. We need not belabor the of gunpowder remaining issues.

First, trial counsel#8217;s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel#8217;s informed and strategic decision to elicit from the 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 example, sentencing is without merit. How Lean Our Economy Essay. The defendant contends that Spinetto should not have been given the opportunity to bioremediation give ?a community impact statement,? speaking about whites forres, his loss of limb after being run over by a drunk driver over thirty years prior, and making a plea for bioremediation example the judge to keep the 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 on The, that the judge considered mitigating circumstances as well.8 Further, the sentence was within the bioremediation example statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. Essay On The Of Cameroon. 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 bioremediation example jury to find that the defendant had driven under the on Rheumatoid Arthritis: Detection influence of alcohol on the public roads leading to the pier. Ante at 835, 927 N.E.2d at 500.

That analysis freed us from the need to 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 example public have access as invitees or licensees#8230;.? G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of precedent restrictively construing the statutory terms ?way? and ?place.? As usual, we have avoided possible contradiction of precedent still approved by of gunpowder, 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. Bioremediation. The language of the statute relevant to middle homes our concern was last revised in 1961, see St.1961, c. 347, to bioremediation provide the following: ?Whoever, upon any way or in any place to which the public has a right of How Lean Manufacturing Our Economy, 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 #8230; while. under the influence of intoxicating liquor #8230; shall be punished#8230;.? 3. The opinion of the court describes the location, the example access roads, the gate, and upper middle, signage related to bioremediation example the pier. Ante at 833-835, 927 N.E.2d at 499-501. Four important and independent circumstances of the use of the 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 sahel children from the pier; their parents and friends would observe their. races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and endangered by the defendant#8217;s driving were pedestrians. Additionally, the bioremediation example evidence permitted the désertification sahel jury to make the example following findings about the defendant#8217;s conduct. He drove his pickup truck at a high speed onto the pier; got out and whites forres, urinated onto one of the benches; reentered the truck and backed into another bench; and then backed up further so as to collide with a storage shed used by the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law.

A sensible and example, direct application of the middle class homes words of the statute to example the circumstances of the pier and Republic, the actions of the defendant would appear to make him punishable. Bioremediation. However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. Of Gunpowder. 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 under authority of law.? St.1906, c. 412, ? 4. It made no reference to bioremediation example operation in of gunpowder, 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 bioremediation, motor vehicles. See Commonwealth v. How Lean. Clarke, 254 Mass. 566, 567-568, 150 N.E. 829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of bioremediation example, travellers upon middle class homes highways?); Commonwealth v. Clancy, 261 Mass.

345, 348, 158 N.E. 758 (1927) (the statute ?was intended to bioremediation example regulate the use of upper class homes, motor vehicles upon ways?). In 1928, the Legislature rewrote the 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 bioremediation example influence of intoxicating liquor #8230; shall be punished #8230;? (emphasis supplied). G.L. The Invention. c. 90, ? 24, as appearing in St.1928, c. 281. Thus the notion of statutory protection for highway travelers or motorists took hold in the version of the act predating any reference to operation in a ?place.?

Subsequent decisions seem never to have caught up with the 1928 addition of the example concept of a ?place? as the site of operating under the influence. Despite the added term, the court in Commonwealth v. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon the requisite ?place to How Lean Manufacturing Helps Our Economy Essay which the public ha[d] a right of access? because no general public easement existed over it, even though the owner of the example private way had permitted use of it by members of the public as business invitees or business licensees to a nearby restaurant and a market building. The court reasoned that the How Lean Manufacturing Helps Our Economy Essay canon of strict construction of penal statutes required an explicit legislative statement expanding the example place of on Rheumatoid and Treatment, public access to private sites receiving members of the public as business invitees or licensees. Ibid. Three years later the Legislature responded with the example additional words ?as invitees or licensees.? St.1961, c. Whites Forres. 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 court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). In another it determined that the 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 owner#8217;s permission did not involve a ?place to 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 bioremediation example, 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. Middle. ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to address the bioremediation example problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid. Manufacturing Helps Essay. In its last assessment of this portion of the act in example, 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field. Commonwealth v. George, 406 Mass. at whites forres, 639-640, 550 N.E.2d 138. Bioremediation. 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 upper middle class, motor vehicle. Id. at 638, 550 N.E.2d 138. 4. The issue. None of the cases appears to have addressed the bioremediation example applicability of the statute to Essay Arthritis: Early places to which members of the bioremediation example public have access as pedestrian invitees or licensees.

For the following reasons, a continuation of the unexamined assumption that the How Lean term ?access? in the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by example, its language and contradicted by its safety purpose. The precise language of the act is the first source of insight into 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 impaired operation ?upon any way or in any place? accessible to members of the public as invitees or licensees.

The repeated use of the whites forres 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 bioremediation, motor vehicles. It. chose the additional words in 1961 as a specific answer to of Cameroon the narrow interpretation and the invitation of additional language by the then recent Paccia decision, 338 Mass. at example, 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and a ?place.? Its revisions of the How Lean Helps Essay statute have progressively expanded its range. On three occasions the courts have pointed out bioremediation that the Early Detection 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 bioremediation, favor of class homes, criminal defendants any reasonable doubt as to example the statute#8217;s meaning?); Commonwealth v. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an Essay on The Republic identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in example, the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the law#8217;s limitation to the invention members of the bioremediation example public as motorists and sahel, 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 bioremediation example available and sensible interpretation is to of gunpowder be rejected in bioremediation, favor of a fanciful or perverse one.? Commonwealth v. 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 in a discussion of the scope of the act.

One is that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the Essay on The Republic of Cameroon felony vehicular homicide statute, G.L. c. Example. 90, ? 24G [ a ], against Detection and Treatment 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 bioremediation example statutory definition of Arthritis: Early, ?way,? G.L. c. 90, ? 1, supra at example, note 4, and Arthritis: Detection and Treatment, the general ordinary meaning depict an bioremediation 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. The 1928 addition of the term ?place? by the Legislature expanded the diameter of the statute beyond the focus of the early decisions on protection of highway travellers. Other standards of interpretation forbid courts to add language to the terms chosen by the Legislature. Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. v. Fire Chief of upper middle, Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the example current interpretation effectively adds the phrase ?by motor vehicle? to the Legislature#8217;s words ?any place to which the 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 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. How Lean Helps. v. Commissioner of Ins., 356 Mass. Bioremediation. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. The Invention Of Gunpowder. Millican, 449 Mass. at bioremediation, 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of members of the whites forres 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 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 usual ways of motor traffic. Members of the bioremediation example 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 désertification sahel, places of insufficient public access for protection against bioremediation example impaired drivers because they entered them on on The Republic of Cameroon 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 bioremediation the fortuitous location and status of the invention, his endangered or injured victim. Solutions. A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the statute. Bioremediation. The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the Essay Arthritis: Detection and Treatment momentum of error. Within the example executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator#8217;s use of public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here.

Within the judiciary the Republic of Cameroon Supreme Judicial Court could reconsider the present construction said by the court in George to have evolved without discussion. Finally, and perhaps ideally, the Legislature could further amend the bioremediation example statute to extend its reach unmistakably to ?any place in which the public has a right of access, or #8230; any place to which members of the désertification sahel public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Bioremediation Example. Photographs of the pier, maps, and plans were introduced in the invention, 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 bioremediation the Charlestown Pier. He then drove in traffic on Essay Arthritis: Early public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to ?race up and example, 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 Invention Of Gunpowder. 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 example leave the field. In the instant case, in contrast, the evidence and of gunpowder, the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the bioremediation influence on public roads prior to the invention of gunpowder his arrival at the pier. 5. Bioremediation Example. 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 car soon after they were confronted at the pier. 7. The Commonwealth chose not to the invention of gunpowder inquire about the bioremediation example field sobriety test on upper middle homes cross-examination.

8. 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 the recommendations of the prosecutor in bioremediation, the case and the recommendations of the Essay Arthritis: Early Detection and Treatment defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to example follow governing precedents of the Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Sahel. Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988).

Commonwealth v. Example. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. The Invention Of Gunpowder. That limitation, however, does not bar the court from useful observations in dicta about the continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. Example. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. Essay And Treatment. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlord#8217;s breach of covenants in bioremediation example, the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Essay On Rheumatoid Arthritis: Early. Leone Enterprises, Inc., 437 Mass. 708, 709, 774 N.E.2d 611 (2002). Bioremediation Example. Other observations may recommend the extension or the insertion of standards or rules to cure chronic problems revealed by multiple cases. Middle Class Homes. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of that view by the Supreme Judicial Court, S.C., 442 Mass. Example. 423, 440-449, 813 N.E.2d 516 (2004).

2. 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. Upper Class. 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 example Appeals Court has consulted the definition of that term by G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at 833, 927 N.E.2d at upper class homes, 499, quoting from Commonwealth v. Bioremediation. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the of gunpowder locus required for conviction of operating under the bioremediation example influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and which was indisputably open for Republic travel by bioremediation example, 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 jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY. Appeals Court of Massachusetts. Whites Forres. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and example, are superseded by the advance sheets and bound volumes of the the invention of gunpowder Official Reports. This preliminary material will be removed from the Web site once the bioremediation advance sheets of the Official Reports are published. Motor Vehicle, Operating under the of gunpowder 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 returned in the Superior Court Department on January 26, 2005.

The case was tried before Howard J. Whitehead, J. Bioremediation Example. James P. McKenna for the defendant. Whites Forres. Ronald DeRosa, Assistant District Attorney, for the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. Bioremediation. 90, 24(1)(a)(1). 1 His principal issue focuses on the meaning of #8220;operation#8221; under that statute. We affirm.

1. Operation of the motor vehicle. A. Essay Arthritis: Early Detection. Operation as matter of law. Bioremediation. At trial, the Commonwealth pursued only on The Republic of Cameroon one theory: that the defendant, who was under the example influence of intoxicating liquor and désertification sahel, was found slumped over the wheel, operated a motor vehicle by putting the keys in bioremediation, 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 defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 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 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 be #8220;operating#8221; the vehicle for purposes of G.L. c. 90, 24, is one of first impression in of Cameroon, 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 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 example, 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 sahel key in the ignition to the #8220;on#8221; setting could be found to example be part of on The, a sequence that would set the bioremediation vehicle#8217;s engine in the invention, motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the bioremediation example Massachusetts OUI statute. The purpose of G.L. c. 90, 24, is to #8220;protect[] the public from How Lean Manufacturing Helps Essay intoxicated drivers,#8221; Commonwealth v. Ginnetti, 400 Mass.

181, 184 (1987), by bioremediation, #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. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf. State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (#8220;[a] clear purpose of the [Ohio OUI statute] is to on Rheumatoid Arthritis: Early and Treatment discourage persons from putting themselves in bioremediation example, the position in Essay on Rheumatoid Early and Treatment, 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. In sum, applying the Uski definition to example 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 the invention of gunpowder set in motion the motive power of the 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 example part of a sequence that will #8220;set in motion the motive power of the vehicle#8221;) (citation omitted). 7, 8. Whites Forres. 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 key in the ignition to a position that does not start the car would only draw power from the battery and thus neither starts the bioremediation engine nor makes use of the power provided by How Lean Manufacturing Helps Essay, its engine. Example. 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 court was faced with the the invention question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. Bioremediation. c. The Invention. 90, 24, #8220;merely because it is bioremediation immovable due to Early road or other conditions not involving the vehicle itself.#8221; Id. at 184. Applying the 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 court did not state that operation was conditioned on 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 bioremediation example, 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 désertification sahel, the driver#8217;s seat with a key turned in example, 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 the invention of gunpowder, intoxicating liquor 12 or the fact that the vehicle was on 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 example prove that he put the key in the ignition of the How Lean Manufacturing 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 bioremediation, the defendant, is sufficient#8230; to whites forres permit the jury to infer the existence of the essential elements of the crime charged#8230;#8221; beyond a reasonable doubt. Commonwealth v. Bioremediation Example. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the defendant was found asleep in the driver#8217;s seat #8220;slumped over the invention of gunpowder 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 front of him.#8221; The vehicle#8217;s dashboard was illuminated. Bioremediation Example. The key was in the ignition and had been turned to the #8220;on#8221; position so that the #8220;energy to of gunpowder the vehicle was on,#8221; but the engine itself was off and bioremediation example, #8220;[t]he vehicle was not running.#8221; The police officer had to #8220;physically turn the ignition back#8221; in order to of gunpowder remove the key. The police did not observe anyone else in the van at the time of arrest. Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in example, the driver#8217;s seat of the vehicle, put a key in the ignition and How Lean Manufacturing Helps Our Economy, turned it to the #8220;on#8221; position.

See Commonwealth v. Cabral, 77 Mass.App.Ct. Bioremediation. 909, 909 (2010) (#8220;Circumstantial evidence may be exclusive evidence of class homes, 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 bioremediation, evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and the arresting officer that the defendant, upon How Lean Manufacturing Helps being awakened by example, 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 began eating his food, he did not remember what happened until the How Lean police officer woke him up. The jury, however, could have found that the defendant simply did not remember placing the key in bioremediation example, the ignition, or they may have determined that he was not being truthful in denying putting the key in whites forres, the ignition. Moreover, the existence of contradictory evidence does not require a finding of 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 threw the 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 example key and 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 defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of désertification sahel, 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 bioremediation example defense counsel#8217;s argument that implied such a conspiracy. See Commonwealth v. Désertification Sahel. 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 bioremediation example evidence. B. The defendant argues that his right to testify was #8220;improperly muzzled#8221; at trial because he was not permitted to 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 elicit testimony from the defendant#8217;s friend that the defendant said he had to whites forres 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 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 bioremediation example motion. The record reflects that as soon as the judge became aware of a conflict between the defendant and his counsel, the defendant was provided an opportunity to explain his reasons for wanting to remove his attorney.

The judge did not abuse his discretion in denying the defendant#8217;s motion where (1) this trial counsel was the defendant#8217;s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for a new trial on on Rheumatoid Early and Treatment 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 bioremediation, (4) the on Rheumatoid Arthritis: Early defendant merely complained of something that any lawyer who represented him #8220;who had any competence at all would do.#8221; See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the judge abused his discretion by refusing to remove two jurors for cause. 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 determine whether a police officer was telling the bioremediation 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. 798, 808 (1995). #8220;Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is sahel manifest.#8221; Commonwealth v. Seabrooks, supra at 443. No such prejudice was manifest here. E. Example. The defendant challenges the sufficiency of the evidence of prior convictions presented at the subsequent offense portion of his trial.

Reviewing the issue under the familiar standard of Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendant#8217;s contention is without merit. First, there was ample evidence that the on The Republic of Cameroon defendant was the person who had been convicted of similar offenses once in bioremediation example, 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (#8220;[registry of motor vehicles] records, which contained more particularized identifying information#8230;, also reflected the offenses and the fact that they were the the invention of gunpowder defendant#8217;s#8221;). 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). Example. 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). Finally, the of gunpowder 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 bioremediation example, 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 désertification sahel speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.

910 (1979), #8220;a criminal defendant who is not brought to bioremediation example trial within one year of the Essay return day in the court in which the case is awaiting trial is example presumptively entitled to dismissal of the whites forres 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 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 bioremediation, documents filed in support or opposition to the defendant#8217;s motion to upper class homes dismiss show that many days are excluded from the bioremediation calculation. Due to jointly agreed upon continuances by the parties, at least 117 days are excluded.

15 See Barry v. 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 upper middle class homes defendant#8217;s motion to dismiss, which was filed on example December 13, 2006, and decided on January 10, 2007, also tolled the running of the rule 36 time for désertification sahel twenty-nine days. See Commonwealth v. 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 trial, meaning that fewer than 365 days remain to count against the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and bioremediation example, the order denying the motion to dismiss is How Lean Our Economy affirmed. 18. 1. General Laws c. Bioremediation. 90, 24(1)(a)(1), as amended through St.2003, c. 28, 1, 2, provides in relevant part: #8220;Whoever, upon any way or in any place to Arthritis: Early and Treatment 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 bioremediation example, weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of on Rheumatoid Arthritis: and Treatment, intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished#8230;. Bioremediation. #8220;If the defendant has been previously convicted or assigned to How Lean Manufacturing Our Economy 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 bioremediation offense for which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years#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. Clarke, 254 Mass. 566, 568 (1926). 3. Sahel. If the evidence shows that a defendant was seated in the driver#8217;s seat with the engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant #8220;seated in the driver#8217;s seat with the engine running and bioremediation, a key in the ignition#8221;); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Whites Forres. 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). Bioremediation. 4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on the motor or simply placed the on The Republic key in the ignition. 5. See also Commonwealth v. Example. Sudderth, 37 Mass.App.Ct. at 320 (#8220;The defendant#8217;s intention after occupying the driver#8217;s seat is Helps Essay 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 the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to bioremediation example the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the on Rheumatoid Early Detection and Treatment wheel of the bioremediation vehicle and could have at any time started the sahel automobile and driven away#8221;). 7. Cf. Stevenson v. Example. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the defendant did not operate the vehicle #8220;[b]ecause the presence of the homes 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 Stevenson v. Falls Church case stands for the proposition that the bioremediation position of the Helps Our Economy Essay key in bioremediation, the ignition is a factor that a trial court should consider but does not create a bright line rule). 8. 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 vehicle#8217;s power; using an of gunpowder electronic remote starting device to 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 bioremediation example, the ignition to engage either the electricity or the motor before going to sleep in a seat other than the driver#8217;s seat. 9. In the whites forres absence of any evidence below regarding whether the key, when turned in example, the ignition to the on 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 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 vehicle in motion. To operate a motor vehicle, it is not necessary that the engine be running. The intentional as opposed to accidental manipulation of the invention of gunpowder, any mechanical part of the vehicle, or the use of any electrical agency which alone or in bioremediation, sequence will set in motion the whites forres mode of power of the vehicle is sufficient in law to constitute operation. A person operates a motor vehicle, within the meaning of the bioremediation example law, when, in whites forres, 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 vehicle. The Commonwealth need not prove the defendant#8217;s intention after occupying the driver#8217;s seat.#8221; 11. We also reject the defendant#8217;s argument that #8220;a stopped engine instruction#8221; was required because the engine was stopped, and bioremediation example, the stop was not incidental to the operation of the vehicle. See Commonwealth v. Cavallaro, 25 Mass.App.Ct.

605, 609 (1988), quoting from Commonwealth v. Upper Middle. 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 bioremediation vehicle. 12.

The defendant admitted at Essay, trial that he had consumed at least ten White Russian drinks that evening and was #8220;highly intoxicated.#8221; Furthermore, the example arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. Of Gunpowder. The arresting officer testified that the vehicle was parked on example the street in Essay on The, front of a restaurant. 14. The defendant also argues that the Commonwealth failed to bioremediation example meet its burden by not introducing sufficient evidence that the defendant#8217;s friend was not the person operating the on Rheumatoid Detection 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 bioremediation car at the time of the accident). Boothby, however, is distinguishable from the current case because, here, the of gunpowder police only found one possible operator at the scene and bioremediation example, 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 Essay, (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. Bioremediation. 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 of gunpowder the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for bioremediation example the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the requirement for a speedy trial, we do not compile a complete list of all excluded days.

18. The defendant also appeals from the denial of on Rheumatoid Early Detection and Treatment, his pro se motion to dismiss under G.L. c. 276, 35. Assuming, arguendo, that the judge denied the example motionthere is no record of such rulingand that this issue is whites forres properly before this court, we affirm. General Laws c. 276, 35, applies only to bioremediation mid-trial continuances and Manufacturing, the delay complained of by the defendant is example prior to the commencement of trial and, thus, does not fall within the statute. A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. Republic Of Cameroon. c. 90, 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, 24[2][a]). 75 Mass. App. Bioremediation Example. Ct. 643. Appeals Court of Massachusetts, Bristol.

Argued March 6, 2009. Upper Middle Homes. Decided November 2, 2009. Bioremediation. Paul C. Sahel. Brennan, Dalton, for the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Ct. 644] A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, 24G[a]), and by negligent operation of bioremediation example, a motor vehicle (in violation of on Rheumatoid Early, G.L. Bioremediation Example. c. 90, 24[2][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 Essay Republic, the venire; (2) the trial judge improperly admitted evidence of the defendant#8217;s blood alcohol content and erroneously instructed the example jury on that evidence; and (3) calculated improprieties by the invention, the prosecutor and extraneous influences upon bioremediation the jury resulted in reversible error.

We reverse. The Invention Of Gunpowder. The trial judge did not offer a sufficiently adequate and bioremediation example, contemporaneous explanation of her allowance of the peremptory challenge. In addition, the Manufacturing Helps Our Economy judge erroneously admitted evidence of the defendant#8217;s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Bioremediation Example. Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of G.L. c. 90, 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of G.L. 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. 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 Republic of Cameroon defendant to two and example, one-half years in the house of correction on Essay the motor vehicle homicide charge and a consecutive sentence of two years in the house of correction on bioremediation the negligent operation charge. In December of the invention, 2006, the defendant filed a motion for relief from an example unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. On Rheumatoid Arthritis:. 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. On November 27, 2003, at example, approximately 8:30 P.M., the upper middle class defendant#8217;s jeep and the victim#8217;s vehicle collided at an intersection in New Bedford. Four people witnessed the collision, and each of them testified at trial. According to 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 accident saw the defendant pacing back and forth in bioremediation example, an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the defendant to the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash. She analyzed the damage to the vehicles and made numerous measurements of the 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 Essay on Rheumatoid intersection.4. [75 Mass. App.

Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to bioremediation example the officers, the whites forres 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 defendant complained of pain in his chest. In response to bioremediation his complaint, hospital staff drew a blood sample from the invention of gunpowder him and analyzed it. The doctor who had treated the bioremediation defendant testified that his blood serum sample had an alcohol reading of Essay Detection and Treatment, 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to bioremediation example a whole blood alcohol level of .15 to .16. Discussion. 1. Peremptory challenge.

Jury selection proceeded over two days. On the first day, the judge called juror to side bar for further questions. The juror told the judge that she was diabetic. The judge assured her that the disease would not be a problem. Désertification. The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in advance of the parties#8217; challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror.

The judge noted that juror nineteen was the only African-American in the jury pool from either day. She asked the Commonwealth to explain the challenge. In response, the 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 (2) the prosecutor#8217;s discomfort caused by the juror#8217;s fixed stare at bioremediation example, him during empanelment.5 The judge then determined that the prosecutor#8217;s explanation was not race-based. [75 Mass. App. Ct. 647]

Defense counsel asked for the judge#8217;s impression of juror nineteen. The judge stated that the upper middle homes 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 example, another juror whom the 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 whites forres the Commonwealth#8217;s peremptory challenge of 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 bioremediation example explanation for the peremptory challenge, and she repeated the prosecutor#8217;s explanation. She noted also that the applicable case law requires #8220;a two prong analysis. One having to do with the adequacy of the Commonwealth#8217;s position once having been questioned about the reason for the challenge and then the genuineness of that.#8221; Although the prosecutor had not mentioned the criminal. [75 Mass. 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 stand.#8221; Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race.

See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). Essay Arthritis:. #8220;[W]e begin with the presumption that a peremptory challenge is proper.#8221; Commonwealth v. Bioremediation Example. 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 conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is sahel a likelihood they are being excluded from the jury solely by bioremediation, reason of their group membership.#8221; Commonwealth v. Soares, 377 Mass.

461, 490, 387 N.E.2d 499, cert. Essay On Rheumatoid Arthritis: Early And Treatment. denied, 444 U.S. Example. 881, 100 S.Ct. Whites Forres. 170, 62 L.Ed.2d 110 (1979). Bioremediation Example. Either the désertification sahel party opposed to example the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the the invention challenge. Bioremediation Example. See Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). Whites Forres. When #8220;the judge initiates a sua sponte inquiry into bioremediation, 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 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. Désertification. Soares, supra at 491, 387 N.E.2d 499. Example. If the proponent#8217;s. [75 Mass.

App. Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. Désertification Sahel. See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). The judge must then #8220;make an independent evaluation of the bioremediation example [proponent's] reasons and #8230; determine specifically whether the explanation was bona fide or a pretext.#8221; Ibid. #8220;In other words, the judge must decide whether the explanation is on The Republic both `adequate#8217; and `genuine.#8217;#8221; Commonwealth v. Maldonado, supra at bioremediation, 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 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 genuineness and, if necessary, an on The Republic 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). Example. In this case, the trial judge raised the question of the propriety of the peremptory challenge. She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and Essay Arthritis: and Treatment, allowed defense counsel to bioremediation example respond. See Commonwealth v. On Rheumatoid Arthritis: Early. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 26, 725 N.E.2d 182. Bioremediation. 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 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 Essay Early and Treatment challenge and allowed it. It was not until the 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 bioremediation example firm and the invention of gunpowder, timely explanation for allowance required by the line of cases culminating in Commonwealth v. Benoit, supra. As in Commonwealth v. Example. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor#8217;s explanation of the peremptory challenge.

See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor#8217;s peremptory challenge where judge. The Invention Of Gunpowder. [75 Mass. App. Ct. Bioremediation. 650] requested explanation and then allowed challenge but #8220;did not find that the Republic of Cameroon prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge#8221;); Commonwealth v. Benoit, supra at bioremediation, 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 Arthritis: adequacy and genuineness of bioremediation, reason for peremptory challenge). In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the invention, the same district attorney#8217;s office.9 The judge did not address. the ground of staring.10 She rejected the bioremediation suspected slowness. She introduced, a day later, the experience of the désertification 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 example adequacy and genuineness required by the cases to sustain the How Lean Manufacturing Our Economy peremptory challenge. Bioremediation Example. In particular, the judge did not find either of the class prosecution#8217;s grounds adequate, i.e., #8220;personal to the juror and not based on the juror#8217;s group affiliation#8221; and #8220;related to the particular case being tried,#8221; however genuine or bona fide the offer may have been. Bioremediation. 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. Evidence of blood alcohol content. The Commonwealth. [75 Mass. App. Ct. Essay And Treatment. 651] began trial with two theories of operation under the influence, the per bioremediation example se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory. 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 Essay Arthritis: Detection, operation under the influence. During the trial, the Commonwealth introduced evidence of the defendant#8217;s blood alcohol content but offered no expert testimony to explain the example relationship between blood alcohol content and on The Republic, impaired operation. During the charge conference, the Commonwealth requested jury instruction on bioremediation both theories. The judge stated that she was inclined not to give an instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in the invention, relevant part, as follows: #8220;The law says that if the bioremediation example percentage of alcohol by the invention, weight in example, 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 middle homes instruction was erroneous. The defendant did not object to bioremediation example the blood test evidence, the prosecutor#8217;s reference to it in his summation, or the judge#8217;s erroneous instruction. Of Gunpowder. In 2003, the Legislature amended both G.L. Example. c. 90, 24G, the motor vehicle homicide statute, and whites forres, G.L. c. 90, 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of bioremediation example, intoxication. St.2003, c. 28, 1, 21, 22. Pursuant to désertification the amendments, the bioremediation Commonwealth may prove intoxication through evidence that the defendant had #8220;a percentage, by weight, of alcohol in [his] blood of sahel, eight one-hundredths or greater.#8221; G.L. c. 90, 24G(a). Prior to the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of .08 percent or greater.

Commonwealth v. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference. See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Ct.

652] absence of expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: #8220;If #8230; the bioremediation Commonwealth were to Essay on The proceed only on a theory of impaired operation [instead of example, 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 Arthritis: Early, 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 bioremediation example, impaired ability theories of Manufacturing Helps, criminal liability are charged in the alternative #8230; and example, so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the test level to Essay Arthritis: Early and Treatment the degree of intoxication or impairment of the defendant.

In such a case, the jury presumably would be instructed that if they find the bioremediation example defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and désertification sahel, 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 blood tests in addition to the results of breathalyzer tests. After issuance of example, Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and How Lean Essay, the judge admitted breathalyzer results without expert testimony and over the defendant#8217;s objection, admission of the 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 bioremediation explain its relationship to intoxication. The judge did not instruct the jury on the per se theory. Furthermore, the judge erroneously instructed the jury on Essay Republic of Cameroon the permissible inference of example, intoxication eliminated by the invention of gunpowder, the 2003 amendments. See. Bioremediation. [75 Mass. App.

Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. Arthritis: Detection And Treatment. 2, 885 N.E.2d 164.12 The defendant argues that the example erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice. Under that standard, the question becomes whether the désertification 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). Bioremediation Example. Even without the blood test, the Commonwealth#8217;s evidence of intoxication was strong. Upper Middle Homes. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the bioremediation victim#8217;s vehicle.

A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant#8217;s jeep had been traveling at upper middle, sixty-four miles per hour when it entered the intersection. Example. The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of Essay, forty ounces of example, beer earlier in How Lean Manufacturing Helps Our Economy Essay, the evening. However, the laboratory supervisor#8217;s testimony that the defendant had a blood alcohol content between .15 and example, .16 percent may have been the Essay Arthritis: Detection and Treatment most compelling evidence of intoxication. Without it, the Commonwealth#8217;s evidence was #8220;strong but not overwhelming.#8221; Commonwealth v. Bioremediation. 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 whites forres impaired operation theory submitted to the jury, the error may have materially influenced the bioremediation example verdict and Essay, therefore created a substantial risk of a miscarriage of justice. Bioremediation. 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 verdicts. The case is remanded to the District Court for class 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. c. 90, 24G(b). After issuance of the June 1 complaint, which charged the bioremediation defendant with motor vehicle homicide by Manufacturing Helps, operation under the influence and by example, negligent operation (in violation of G.L. Of Gunpowder. c. Example. 90, 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the first complaint. 2. Under G.L. c. Essay Republic. 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 [2] while under the influence of intoxicating liquor.#8221; G.L. Bioremediation. c. 90, 24G(a), as amended through St.2003, c. Of Gunpowder. 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 bioremediation example June 1 complaint, the complaint alleged only the second theory. 3. In April of 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 unlawful sentence. The Commonwealth#8217;s appeal has not entered in this court. In its brief, the Commonwealth does not argue the propriety of the whites forres grant of the bioremediation example 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 of Cameroon 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 mannerisms and bioremediation example, 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 invention, the side-bar; and it bothered me. But I do find that she#8217;s slow at side-bar speaking with her, in example, 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 her ability to try the evidence.#8221; 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the upper middle class homes discussion of the challenge, the judge asked the bioremediation prosecutor why he had used another peremptory challenge on juror fourteen. On Rheumatoid Early And Treatment. On the previous day, the bioremediation judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of the invention of gunpowder, a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge. 7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass.

460, 788 N.E.2d 968 (2003). However, the transcript reflects that the judge stated that she #8220;look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of a [discrete] group#8230;.#8221; The reference (jumbled in transcription) most probably was the Maldonado decision. 8. The judge#8217;s reference to the criminal history of 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 recall me, just this past fall that was prosecuted by the district attorney#8217;s office and apparently came up#8230;. [A]nd I don#8217;t remember the bioremediation example case per se but she spoke about it. Essay On The Republic. 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 criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by the prosecutor.

9. As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the judge referred to the experience of juror nineteen#8217;s son in the New Bedford District Court. See note 8, supra. Bioremediation Example. The prosecutor did not refer to the criminal history of the juror#8217;s son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutor#8217;s peremptory challenge. See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S.

1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of success. #8220;Challenges based on 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. The Invention Of Gunpowder. Maldonado, 439 Mass. at 465, 788 N.E.2d 968. 11. This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of either the Commonwealth or a defendant. 12. The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the example Colturi decision in April 2007; and this court the Hubert decision in Helps Our Economy Essay, May 2008.

Therefore the 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 issue so that the standard of bioremediation example, review was the presence of prejudicial error. Here we have reviewed the issue under the less demanding standard of substantial risk and found the error again sufficiently serious to require reversal. 14. Manufacturing Helps. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal.

The extraneous influences were (1) a shout by the victim#8217;s mother at the defendant as the jurors left the courtroom on the first day of trial, and bioremediation, (2) the presence of a makeshift memorial to the victim at upper middle class homes, the accident scene during the jury#8217;s view of the example site. Essay On Rheumatoid Arthritis:. The claim of calculated impropriety by the prosecutor arises from testimony of example, two police officers that they told the defendant that he had #8220;killed#8221; the victim. The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the 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 of Cameroon word #8220;killed#8221; fails also, because the judge gave immediate curative instructions. Bioremediation. 15. The defendant presented no issue of a denial of the of gunpowder right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by reason of the admission of the bioremediation example blood alcohol test result. The rule of Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal.

Massachusetts OUI Case Defendnat admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Gerald W. The Invention. GILMAN. Example. Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED. Andrew S. Robinson, Asst. Dist. Atty. (orally), Franklin County DA#8217;s Office, Farmington, ME, for désertification the State of Maine. Walter Hanstein III, Esq. Bioremediation Example. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman.

Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from middle class a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the bioremediation court imposed on Gerald W. The Invention. Gilman following his conviction at example, 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 court imposed an illegal sentence when it sentenced Gilman to less than the 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 Maine Constitution, which requires that #8220;all penalties and punishments shall be proportioned to the offense.#8221; Me. Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the Our Economy Essay mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the. court erred in admitting a certified record from the Secretary of bioremediation, 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. Washington, 541 U.S. 36, 124 S.Ct. Upper Middle Class. 1354, 158 L.Ed.2d 177 (2004), and example, its progeny. ? 3 The State#8217;s appeal is accompanied by the invention, the written approval of the Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b). Example. Because we agree with the State#8217;s contention that the sentence imposed on Essay on Rheumatoid Early and Treatment 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 bioremediation 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 Arthritis: Early and Treatment the officer that his driver#8217;s license was suspended, and at bioremediation, trial he testified that he knew he was suspended for an operating under the Helps Our Economy Essay 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 previous ten years. Bioremediation Example. A certified record from the Secretary of How Lean Manufacturing Essay, 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 his three OUI convictions within the previous ten years. Bioremediation. 29-A M.R.S. Whites Forres. ? 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 . . Bioremediation. . is $1,000 and the minimum term of imprisonment is 2 years, neither of homes, 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 allegation of the aggravating factor of his prior OUI convictions as a violation of example, his equal protection guarantees. Dismissal of the allegation would have reduced the How Lean Manufacturing Helps Essay charge to a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to example 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 the invention revocation, and (3) his driving record included three OUI convictions within the bioremediation previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman#8217;s motion for a judgment of on Rheumatoid Arthritis: Early, acquittal, and took the ultimate issue of bioremediation example, whether the Manufacturing Helps State had met its burden of proof under advisement. Gilman then filed a written. argument asking the bioremediation 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. The court heard argument and took the issues under advisement. ? 8 On September 8, the Essay on Rheumatoid Detection 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 reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that #8220;Tina#8217;s Law#8221; increased the penalties if he were to be convicted of OAR after it took effect. ? 9 On October 27, the example court heard argument on Gilman#8217;s due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the Republic of Cameroon Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman#8217;s sister, and Gilman himself. At the conclusion of the hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Gilman, as well as the manner in bioremediation example, which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in upper homes, his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Bioremediation. 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 probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009). The State orally moved the the invention court to bioremediation correct what it viewed as an illegal sentence pursuant to M.R.Crim. P. 35(a);4 the motion was denied orally and later in of gunpowder, a written order.

This appeal and bioremediation example, cross-appeal followed. A. Of Gunpowder. 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. Example. Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at least two years. 29-A M.R.S. ? 2557-A(2)(D). Accordingly, the court#8217;s lesser sentence was facially illegal unless the whites forres 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 mandatory sentence was disproportionate to his offense, and example, therefore the Essay Detection statute is unconstitutional in example, 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. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of upper class homes, #8220;strong and bioremediation example, convincing reasons.#8221; Town of Frye Island v. 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. Arthritis: Early Detection And Treatment. In discussing a closely related provision of example, section 9, we left it unanswered: Assuming, without deciding, that it may be possible in on The Republic of Cameroon, 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 example, this case for 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 answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by 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. ? 16 The plain language of désertification, section 9 requires that #8220;punishments shall be proportioned to bioremediation example the offense.#8221; Me. Const. art. I, ? 9 (emphasis added). It says nothing about the individual offender. This is How Lean Manufacturing Helps of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used.

Because the same principles employed in the construction of statutory language hold true in the construction of a constitutional provision, we apply the plain language of the constitutional provision if the language is example 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 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 Worthley did we refer to whites forres the characteristics of the individual offender, and bioremediation, 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 Manufacturing Helps Our Economy Essay, 377. Bioremediation. ? 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 offender,8 but has not. required an individualized determination that a mandatory punishment is of gunpowder appropriate except in 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 line of required individualized sentencing at bioremediation, capital cases, and 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 non-capital cases, to individualized sentencing. Legislatures are free to provide for mandatory sentences for particular offenses.. . . The mere fact that a sentence is mandatory and severe does not make it cruel and unusual within the How Lean Our Economy Essay meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by example, our cases holding that the Legislature has the power to enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in sahel, 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 the constitutional prohibition against punishment disproportionate to a given offense. Bioremediation Example. The construction urged by Gilman would go far beyond what the désertification sahel 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 bioremediation example disproportionate as applied to that person is simply reinstatement by judicial declaration of Essay Early and Treatment, a sentencing court#8217;s ordinary discretion to weigh mitigating factors, and example, 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 sentencing discretion that the Legislature intended to whites forres 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 example, each offender, the sentence imposed on Helps Our Economy Gilman was illegal unless it. was disproportionate to the crime he committed. B. Bioremediation Example. The Two-Year Minimum Mandatory Sentence. ? 22 This Court #8220;always has the power and duty to uphold the State and Federal Constitutions,#8221; and will #8220;protect the individual from an whites forres unconstitutional invasion of his rights by the legislative . . Example. . Helps Our Economy. branch of 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 bioremediation Legislature as #8220;the voice of the sovereign people#8221; in the area of crime and punishment: The fixing of an the invention of gunpowder adequate criminal penalty is properly and legitimately a matter of legislative concern. It is not the office of the judiciary to 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 example a permissible legislative purpose; a disparity between the sentence and the evil to be avoided might then be a cruelty of constitutional dimensions.

It seems to us that the of gunpowder 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 limits for punishment. . . . The underlying structure of the penal system is bioremediation example statutory; the coherence of the system is to of gunpowder be found in legislative direction. State v. King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (#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 example determining when a sentence is cruel and sahel, unusual as whether it #8220;is greatly disproportionate. . . and bioremediation, whether it offends prevailing notions of decency,#8221; Worthley, 2003 ME 14, ? 6, 815 A.2d at désertification sahel, 376; whether it #8220;shocks the conscience of the bioremediation public, or our own respective or collective sense of the invention of gunpowder, fairness,#8221; State v. Bioremediation. 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 sahel most extreme punishment decided upon by bioremediation example, 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 on Rheumatoid Arthritis: Early, 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 bioremediation, two years, or forty percent of the maximum. 29-A M.R.S. The Invention. ? 2557-A(2XD). It deemed that penalty necessary to example prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to drive under any circumstances. A mandated sentence for that conduct on on The Republic of Cameroon the lower end of the zero-to-five-years scale is not the rare, extreme, or shocking case, and does not violate the proportionality requirement of bioremediation, article I, section 9. C. Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for middle homes speeding, the Legislature had no rational basis for increasing his sentence for operating after revocation because of his prior OUI convictions.

He acknowledges that in order to reach the bioremediation result he seeks, we would be required to overrule our decision in Essay Early, State v. Bioremediation. Chapin, where the same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was #8220;certainly strong enough#8221; to justify the imposition of a minimum mandatory sentence for whites forres habitual offenders with OUI convictions who continue to example drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to an enhanced sentence for operating after revocation remains intact. ? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the on The of Cameroon 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 agent of the State makes affirmative misrepresentations that are then relied upon to the defendant#8217;s detriment. Bioremediation Example. 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 thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and Republic of Cameroon, Gilman is bioremediation example presumed to know what the law is.

See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Contrary to the invention Gilman#8217;s argument, due process did not require that he be individually notified of the change in order to bioremediation example ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the the invention of gunpowder law in effect at bioremediation, the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. Désertification Sahel. ? 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 bioremediation example 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 revocation, and that he had three OUI convictions within the preceding ten years.

As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Désertification Sahel. Tayman, 2008 ME 177, 960 A.2d 1151. Example. In Tayman, we held that a disputed Secretary of State certification did not offend the whites forres Confrontation Clause because #8220;the certification served only to confirm the 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 example the authority of the Supreme Court#8217;s decision in Melendez-Diaz v. Massachusetts, ___ U.S. Sahel. ___, 129 S.Ct. Bioremediation. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the whites forres Court held that the admission of a chemist#8217;s certificate stating that an 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 example 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). ? 31 We recently analyzed the impact of Melendez-Diaz on Essay on Rheumatoid Arthritis: Early and Treatment Tayman and concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman#8217;s argument fails. Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for bioremediation resentencing. 1 The statute provided: D. A person is of gunpowder guilty of a Class C crime if the bioremediation 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 the invention of gunpowder, which may be suspended by example, the court. Essay On The Republic Of Cameroon. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case. P.L. Example. 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. Whites Forres. 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. Example. ? 2557-A(2)(A) (2009)). 4 The Rule provides: #8220;On motion of the . . . attorney for Helps Essay the state . . . made within one year after a sentence is 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. P. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on example a continuum before deciding whether a particular penalty is constitutional, and class homes, 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. Example. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. Whites Forres. 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. . . . The Eighth Amendment#8217;s protection . . . Bioremediation. flows from the basic precept of justice that punishment for middle homes a crime should be graduated and 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 bioremediation cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to the offense and désertification sahel, whether it offends prevailing notions of decency.#8221;); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (#8220;A mandatory sentence is not cruel and bioremediation, unusual punishment unless the sentence is greatly disproportionate to sahel the offense or the punishment offends prevailing notions of 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 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 bioremediation example the crime); State v. Manufacturing Helps Our Economy Essay. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to bioremediation example the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for whites forres short lobsters not unconstitutionally excessive and bioremediation example, value of the invention of gunpowder, lobsters in example, particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me.

1969) (holding five-day sentence imposed by whites forres, court in its discretion for contemptuous #8220;reprehensible conduct#8221; not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for bioremediation example 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 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. On Rheumatoid Early. 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 bioremediation possessing 672 grams of cocaine not cruel and the invention of gunpowder, unusual).

9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and example, finally determines whether any of the maximum sentence should be suspended in arriving at a final sentence. 17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Governor the equitable power to #8220;grant reprieves, commutations and pardons#8221; in on Rheumatoid Early Detection, 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 #8220;a legislature making overtime parking a felony punishable by life imprisonment.#8221; Ewing, 538 U.S. at bioremediation, 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. How Lean. ? 2557 was repealed and replaced by P.L. Bioremediation Example. 2005, ch. 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. Whites Forres. ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005.

Gautier#8217;s conviction for bioremediation being a felon in Essay on Rheumatoid Arthritis: Early, possession of a firearm pursuant to 18 U.S.C. 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant. Criminal No. 06cr0036-NG. United States District Court, D. Massachusetts. Example. December 23, 2008.

COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Republic. Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender#8217;s Office District of bioremediation, Massachusetts, Boston, MA, for Eddie Gautier. William D. On The Republic Of Cameroon. Weinreb, United States Attorney#8217;s Office, John A. Wortmann, Jr., United States Attorney#8217;s Office, Boston, MA, for United States of America. GERTNER, District Judge: TABLE OF CONTENTS. A. Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the example Crime Defined by Prong (2) of 32B Is a Violent.

2. Essay Republic. Whether the Crime Defined by Prong (2) of 32B Is a Violent. B. Bioremediation Example. Whether the 1998 Juvenile Offenses Were Committed on Different. Whites Forres. 2. Bioremediation. Whether the Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of defendant Eddie Gautier (#8220;Gautier#8221;) one night in Roxbury. The offense stemmed from a night of drunken carousing; the 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 middle class case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. 922(g)(1), because of example, his prior record. His prior convictions include two armed robberies from désertification 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. Bioremediation Example. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (#8220;ACCA#8221;). See 924(e) (applying the penalty to the invention of gunpowder defendants with at bioremediation example, least three previous convictions for class violent felonies committed on separate occasions).

I disagree. In passing the 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 harm to bioremediation example persons.#8221; Taylor v. United States, 495 U.S. Essay. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier#8217;s criminal history consists of example, six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. Whites Forres. 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 not an armed career criminal under the terms of the statute. 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 example the question of whether his 1998 offenses were #8220;committed on occasions different from one another#8221; as the the invention 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 example, special requirements. This memorandum reflects the factual and legal bases for that sentence.

On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to of gunpowder visit his mother. He decided to meet four friends who were out example celebrating two of their birthdays. Désertification. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the example group. One of Gautier#8217;s friends, Salome Cabrera, peered into 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 désertification sahel, the police responded by drawing their weapons on the group. Example. They arrested and the invention, searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in bioremediation, Gautier#8217;s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and middle, indicted on February 15, 2006, on one count of felon in possession of a firearm and one count of felon in possession of ammunition, both pursuant to 18 U.S.C. 922(g)(1). Example. Subsequent to Manufacturing Our Economy Essay his arrest, he agreed to speak to federal agents and police investigators, admitted to possessing the gun, and bioremediation example, divulged where it had come from.

Indeed, according to his counsel, the sahel defendant repeatedly offered to bioremediation plead guilty to the charge, but was advised against whites forres it because of the possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for 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 bioremediation example 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 a group of younger, intoxicated friends in 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. Class Homes. At the first sentencing hearing on October 15, I asked the bioremediation 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 Essay on Rheumatoid Arthritis: Early Detection, whether the juvenile. Example. offenses Gautier committed in 1998 were clearly separate predicates. 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 whites forres 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. Example. 922(g)(1) subjects him to 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 sahel 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 bioremediation, the Supreme Court, that the 1998 offenses were #8220;committed on occasions different from one another.#8221; A. Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass.

Gen. Whites Forres. Laws Ch. 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 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 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 bioremediation, not to the facts underlying the Helps Our Economy Essay conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct.

2143. Bioremediation Example. Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. Désertification Sahel. United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the bioremediation example ACCA, the case law expressly cautions courts against sahel engaging in a post hoc archeological dig of prior convictions to example determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge #8220;may not hold a minitrial on the particular facts underlying the prior offense,#8221; see United States v. Essay On Rheumatoid Arthritis:. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may #8220;peek beneath the coverlet#8221; of the formal language to example ascertain whether the Essay on Rheumatoid conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). Bioremediation Example. 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. Essay On The Of Cameroon. #8220;Not very far, is the answer.#8221; United States v. Bioremediation Example. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at on The Republic, 142-46.) If the defendant was convicted after a trial, the bioremediation court is permitted to How Lean Manufacturing Helps consider what the jury instructions suggested about the example verdict. 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 sahel, 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 bioremediation example Massachusetts statute, a person is guilty of the of gunpowder offense if he knowingly prevents or attempts to prevent an officer from bioremediation effecting an arrest by whites forres, #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 bioremediation example such police officer or another.#8221; Mass.

Gen. Laws ch. 268, 32B(a). The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it #8220;has as an the invention element the use, attempted use, or threatened use of physical force against bioremediation the person of 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 no other record indicating which type of resisting arrest Gautier admitted. While the PSR reviewed the police report of the offense, Gautier did not adopt the on The Republic facts as true. Rather, he interposed a Shepard challenge to any #8220;peek#8221; at bioremediation, the underlying facts not comprised by the plea colloquy.

Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and How Lean Manufacturing Helps Essay, it simply lists the offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and as the. statute is structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the 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 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 physical force against the person of another,#8221; 18 U.S.C. 924(e)(2)(B)(i). Example. 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 of gunpowder, 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 second definition provided by the ACCA. Since resisting arrest is obviously not one of the enumerated offensesburglary, arson, extortion, or a crime that involves the use of explosivesthe inquiry focuses on what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S. 192, 127 S.Ct.

1586, 1591, 167 L.Ed.2d 532 (2007). Bioremediation Example. The issue is upper middle whether resisting arrest #8220;using any other means which creates a substantial risk of causing bodily injury to bioremediation such police officer or another,#8221; in the language of the Massachusetts statute, Mass. Gen. Laws. Middle Class Homes. ch. 268, 32B, #8220;involves conduct that presents a serious potential risk of example, physical injury to another,#8221; in Essay on The of Cameroon, the language of the ACCA, 18 U.S.C. 924(e)(2)(B)(ii). Bioremediation. At first pass, the Essay Detection question seems to answer itself, but the bioremediation example Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the residual clause. In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Early and Treatment Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a #8220;violent felony#8221; under the residual provision of bioremediation example, 924(e)(2)(B)(ii). Essay Republic Of Cameroon. Where the 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 bioremediation #8220;roughly similar, in kind as well as in degree of risk posed, to the#8221; enumerated offenses. Id. at 1585.

The latter step is critical here. It requires a court to decide whether the offense in question typically involves #8220;purposeful, violent, and aggressive behavior#8221;the defining feature of the enumerated offenses. The Court based the Begay test on the text of the Helps Our Economy ACCA, its legislative history, and its underlying purpose. As to example 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. Had Congress intended the statute to Essay on The Republic cover all crimes creating serious risk of injury, it would have omitted the examples.

As to example history, the Court noted that in 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 #8220;punish[ing] only a particular subset of upper class homes, offender, namely career criminals.#8221; Id. at 1588: The listed crimes all typically involve purposeful, #8220;violent,#8221; and example, #8220;aggressive#8221; conduct#8230;. On The Republic Of Cameroon. That conduct is bioremediation such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to Essay on Rheumatoid and Treatment harm a victim#8230;. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels #8220;armed career criminals.#8221; Id. at 1586-87 (citations omitted). Bioremediation Example. In Begay, the Court assumed without deciding that drunk driving involves conduct that #8220;presents a serious potential risk of physical injury to another.#8221; Id. at 1584. Essay On The Republic. Even so, it held under the second step of the 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 simply too unlike the 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 a statute,#8221; but rather should consider #8220;the ordinary case#8221; of the bioremediation example offense. James, 127 S.Ct. at upper class homes, 1597. Example. In the class homes words of the First Circuit, I must evaluate the degree of bioremediation, 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 on The of Cameroon, physical harm does not #8220;often accompany[] the conduct that normally constitutes#8221; the 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 bioremediation a crime of violence #8220;if and Essay Republic of Cameroon, only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant#8217; of the bioremediation predicate offense#8221;); Winter, 22 F.3d at 20 (#8220;A categorical approach is not concerned with testing either the outer limits of statutory language or the upper middle myriad of possibilities girdled by that language; instead, a categorical approach is example concerned with the usual type of conduct that the statute purports to proscribe.#8221;). To determine the mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in Essay on The, the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute.

In Commonwealth v. Grandison, 433 Mass. Bioremediation. 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 a second to avoid being handcuffed constituted resisting arrest by 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 refused to Manufacturing Our Economy Essay put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition.

Commonwealth v. Grant, 71 Mass. App.Ct. 205, 210 n. Bioremediation. 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 invention the authority of the arresting officers#8221;: paradigmatically, the stiffening of one#8217;s arms to example resist handcuffing. Maylott, 65 Mass.App. Désertification. 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 example, least one court has suggested this inconsistency as a ground for middle class finding that a criminal offense fails to satisfy this part of the bioremediation test. See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on the invention 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 individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the 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 particularly pulling one#8217;s arm free, is bioremediation example #8220;[t]he type of of Cameroon, resistance [that] could have caused one of the officers to bioremediation be struck or otherwise injured, especially at the invention, the moment [the defendant] freed his arm.#8221; 433 Mass. at 145, 741 N.E.2d 25.

Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of bioremediation example, resisting arrest cannot fulfill the second part of the Begay test. The crime is not #8220;roughly similar, in kind as well as in upper middle class, degree of risk posed, to the#8221; enumerated offenses. Begay, 128 S.Ct. at 1585. 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 example burglar and a third party #8230; who comes to investigate.#8221; James, 127 S.Ct. at whites forres, 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the bioremediation #8220;powder keg#8221; rationale). The element of surprise that spooks a burglar into personal violence is 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 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 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 homes influence #8230; criminaliz[e] conduct in respect to 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). 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 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 bioremediation, 7 (citation omitted). Prong (2) resistance is such a crime.

The First Circuit recently explained that #8220;all three types of whites forres, conducti.e., purposeful, violent and aggressiveare 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). Bioremediation Example. The court also provided more precise meanings for 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 Essay on The of Cameroon not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. Bioremediation Example. We note, therefore, that aggressive may be defined as #8220;tending toward or exhibiting aggression,#8221; which in middle class, turn is defined as #8220;a forceful action or procedure (as an unprovoked attack) esp. when intended to bioremediation example 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. Upper Middle Class. Applying these definitions, the court held that a conviction under a Wisconsin statute for bioremediation example homicide by negligent operation of désertification sahel, a motor vehicle was not a #8220;crime of violence#8221; under the career offender sentencing guidelines.10 Id. at 59. While the bioremediation offense undoubtedly presented a serious potential risk of 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. 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 First Circuit held in Williams constituted a #8220;crime of violence#8221; under the career offender provision of the the invention sentencing guidelines. 529 F.3d at 7-8. A defendant who prostitutes minors #8220;is aware of the bioremediation example risks that the prostituted minor will face#8221; and the risk of harm is #8220;easily foreseen by the defendant,#8221; id. at 7; a defendant who stiffens his arm to How Lean Manufacturing Helps Our Economy avoid handcuffing exhibits no such intent or clairvoyance that harm will result to bioremediation those around him. Moreover, Prong (2) resistance cannot be said to of gunpowder approach the bioremediation aggression or violence of the enumerated offenses. See, e.g., Taylor, 495 U.S. at the invention of gunpowder, 581, 110 S.Ct. 2143 (noting that Congress considered burglary #8220;one of the example `most damaging crimes to How Lean Manufacturing Helps Our Economy 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 extreme force and sudden intenseness required by bioremediation, the court#8217;s definition of violence. See Herrick, 545 F.3d at 60. Nor does it resemble those offenses previously held by of gunpowder, the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the residual clause. See United States v. Bioremediation Example. 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 How Lean Helps Our Economy 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 example a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and Early and Treatment, entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Example. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and désertification sahel, battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr.

30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over bioremediation 14 years old). And those cases predated Begay, when the standard for finding an offense to be a #8220;violent felony#8221; was easier to satisfy. In light of the difference in aggression and middle, 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 injury. Begay, 128 S.Ct. at 1586. To be sure, some courtsincluding within this districthave found that resisting arrest is an bioremediation example ACCA predicate, but all of these cases predate Begay.11 Begay. #8220;charted a new course in 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 this court, Judge Zobel rejected the government#8217;s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a #8220;crime of violence#8221; under the career offender guidelines. United States v. Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. 24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. 922(g)).

In another post-Begay case on How Lean Manufacturing Essay resisting arrest, the U.S. District Court for the District of Kansas held that the crime of fleeing and eluding an bioremediation officer is 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 the invention of gunpowder, *2. Importantly, the district court so held despite the existence of bioremediation, 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 Essay on The, Begay, then, I find that the example Prong (2) version of resisting arrest is whites forres not a #8220;violent felony#8221; under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of one#8217;s arms, not the application of example, force to on Rheumatoid Early another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest. Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)as it must it cannot look to this conviction for a qualifying violent felony. Gautier has at most two statutory predicatestoo few to bioremediation example trigger the fifteen-year mandatory minimum.

B. Republic Of Cameroon. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Bioremediation. Legal Standard. That Gautier#8217;s resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. In the alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not #8220;committed on whites forres 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 that examination include the #8220;identity of the victim; the type of crime; the bioremediation time interval between the crimes; the location of the crimes; the continuity vel non of the defendant#8217;s conduct; and/or the apparent motive for the crimes.#8221; Id. As one would expect from Congress#8217; use of the word #8220;occasion,#8221; the Manufacturing Our Economy 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 example second crime,#8221; and on the other, #8220;a time lapse which does not mark the endpoint of the first crime, but merely the natural consequence of a continuous course of extended criminal conduct.#8221;13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No. CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me.

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 Essay Early, entering occurred on different occasions because they were committed on bioremediation 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 thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and upper class homes, battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the example same victim and defendant was convicted and sentenced for upper 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 bioremediation above legal standard to the facts of Gautier#8217;s prior felony convictions, I must answer an désertification sahel antecedent question: from bioremediation 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 Early and Treatment case of a guilty plea, the bioremediation example 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 Manufacturing Helps Essay, which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.#8221; Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Example. The issue I confront here is whether this same source restriction applies to désertification my consideration of whether two offenses were #8220;committed on occasions different from one another.#8221; 18 U.S.C. 924(e)(1). The First Circuit has never ruled on example this issue. Upper Class. In a pre-Shepard case, the court #8220;express[ed] no opinion#8221; on the lower court#8217;s citation of Taylor for example 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. In that case, the defendant sought an evidentiary hearing to develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to Essay on Rheumatoid Arthritis: forbid such an bioremediation example involved inquiry and denied his motion, but because the defendant accepted the judge#8217;s ruling without objection, the First Circuit held he could not raise the issue on Essay Arthritis: appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the First Circuit again declined to resolve the issue. The defendant argued it was error for the district court to use facts gleaned from police reports and 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 bioremediation example, United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the #8220;ACCA#8217;s use of the term `occasion#8217; requires recourse only to on The data normally found in conclusive judicial records, such as the bioremediation 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 the PSR to find that three burglaries occurred on separate occasions where that information was derived from Shepard-approved sources such as indictments and where defendant never objected to the details in upper homes, the PSR); see also United States v. Bioremediation. 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. Essay Of Cameroon. Bookman, 197 Fed. Bioremediation. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant#8217;s sentence where the whites forres sequence of his predicate offenses was not established by 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 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. 2:06-CR-14-FL-1, 2008 WL 4641346, at example, *2 (E.D.N.C. 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. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and Essay, holding that the trial court #8220;properly reviewed the charging documents to example determine that the offenses occurred on three separate occasions#8221;). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. Whites Forres. The Sixth Circuit has been most emphatic: #8220;All of 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. Example. 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 désertification sahel details that reveal whether offenses were committed on 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 bioremediation example, the Eleventh Circuit has held on the same grounds that the question is #8220;unsuited to a categorical approach,#8221; United States v. Class. Richardson, 230 F.3d 1297, 1300 (11th Cir. Example. 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. 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 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 becoming embroiled in a `daunting#8217; factual inquiry about upper homes, what had actually happened at the time of the state offense.#8221; United States v. Bioremediation Example. 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 désertification, a jury, it is only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at sentencing.14. In light of the 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 example, any explicit factual finding by the trial judge to which the defendant assented#8221; in determining whether the defendants prior offenses were committed #8220;on occasions different from one another.#8221; Id. at the invention of gunpowder, 16. 3. The 1998 Offenses. In the instant case, the bioremediation example only Shepard-approved sources available to Essay Republic me in deciding whether the example 1998 offenses occurred on different occasions are the state court indictments and Gautier#8217;s plea tenders. The statutory definitions contain no elements that bear on the sequence of the désertification sahel offenses. Example. The government can produce no plea colloquy transcripts from those cases. Essay On Rheumatoid Early And Treatment. And no additional underlying facts were incorporated into the PSR and adopted by the defendant. PSR 35-36 (repeating the details provided in the indictments and bioremediation example, 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 Essay Early Detection and Treatment 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 grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one #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 bioremediation example steal E.M.#8217;s car, robbed him of $25.00, and upper middle homes, confined or imprisoned him against his will. Bioremediation Example. Clearly, the defendant committed these crimes against different individuals. But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims. Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the time interval between the désertification offenses, or the continuity of the conduct.

It is example therefore not #8220;possible to discern the point at which the the invention first offense is completed and the second offense begins.#8221; United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). 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 well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while #8220;the three qualifying offenses must be temporally distinct,#8221; separate indictments are not required); United States v. Bioremediation Example. Howard, 918 F.2d 1529, 1538 (11th Cir.

1990). Whites Forres. 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. 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 bioremediation ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 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 on Rheumatoid Early Detection existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to the instant case. Bioremediation. Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth #8220;may#8221; charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautier#8217;s 1998 offenses in separate indictments, then, says nothing about Essay on The Republic of Cameroon, how distinct they were. As no Shepard-approved material establishes that Gautier experienced #8220;a period #8230; devoid of criminal activity and in which he may contemplate whether or not to bioremediation example commit the second crime,#8221; Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies #8220;on occasions different from one another.#8221; By the of gunpowder terms of the ACCA itself, the example 1998 offenses do not provide more than a single predicate.

This result provides a secondary reason the mandatory minimum does not apply to Gautier.15. Désertification. IV. THE SENTENCE. A. Bioremediation. 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. 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. I consider this issue in connection with the 3553(a) factors (see below). While the government argues that the whites forres defendant committed perjury during his trial testimony, I do not agree and 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 example a 48-month sentence because the gun was inoperable, because he took possession of Manufacturing Our Economy, it as a safety measure to avoid what he believed to be imminent harm to others, and bioremediation example, 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 How Lean Helps, Circumstances of the Offense. Gautier claims he took the gun from his friends because they were drunk and behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found. Given his record, he should not have put himself in a position where the offense was even possible: in 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 the time, or did regularly. 2. Bioremediation Example. Deterrence; Public Safety. Whites Forres. Gautier cooperated with the authorities from the outset. Bioremediation. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to upper middle homes trial on example the advice of his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for sahel what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines.

I found Gautier contrite at his lengthy allocution during sentencing, an bioremediation example 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 whites forres, 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. When Gautier was 12, his mother sent him back to Puerto Rico to bioremediation example live with his paternal grandmother because of his discipline problems. Upper. 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 DYS for a number of offenses. Bioremediation. He was released on parole at age 17, but was in and out of Essay Early, 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 bioremediation give his life structure, but needs more. Of Gunpowder. I have required Probation to bioremediation devise a recommended plan for him, both as a recommendation for the Bureau of Prisons during the period of Essay Arthritis:, his incarceration and as a template for his supervised release afterwards. Studies suggest the significance on recidivism of a consistent plan, beginning in prison and extending into reentry.

Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). In addition to bioremediation example that plan, as a condition of Essay Detection, supervised release, Gautier is to bioremediation speak at high schools or to other young men identified by Probation as #8220;at risk.#8221; I believe that a sentence of Manufacturing Helps Essay, 57 months is example appropriate here for the following reasons. 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 trigger guard is broken off, the Essay Arthritis: Early Detection and Treatment ejector rod collar is bioremediation out of place, the ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the cylinder hand is not making contact with the cylinder, and the invention of gunpowder, neither the trigger nor the hammer can be drawn back to the firing position. Bioremediation. There is rust on Essay on The Republic of Cameroon the cylinder, the ejector, the crane, and the trigger.

This weapon cannot be fired in its present condition and in my opinion it would require extensive work and bioremediation example, new parts to désertification return this weapon to a state in bioremediation, 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 the same day in whites forres, 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (#8220;PSR#8221;) 35-40. 3. Gautier made incriminating statements during the bioremediation example 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 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 Arthritis: Early government and bioremediation example, 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). Essay Detection And Treatment. I then concluded that the central question was, what did the defendant plead to in state court, and that the police reports did not provide reliable evidence on example that central question. United States v. Essay On The Republic Of Cameroon. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the police reports could be considered and example, instructing me to apply to the invention of gunpowder ACCA mandatory minimum. United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by defendant, in determining whether a defendant had pleaded to example 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 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. Désertification. The government describes these as #8220;marginal or unusual examples of the crime,#8221; Gov#8217;t Sent.

Mem. Bioremediation. 3, but it offers no cases to Arthritis: Early 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 bioremediation question of whites forres, whether failure to report to prison is a violent felony under the ACCA. Chambers v. United States, No. 06-11206, 2008 WL 4892841 (U.S. 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 example, violent confrontation when law enforcement officials attempt to take the upper middle class defendant into custody. The Seventh Circuit held as a matter of bioremediation example, stare decisis that failure to on Rheumatoid Early report was a violent felony, though it emphasized that #8220;it is an embarrassment to the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by 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. Bioremediation Example. Of course, a reluctant arrestee might also fight back against an arresting officer.

In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. The First Circuit has repeatedly held that #8220;[g]iven the similarity between the 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 generally persuasive when interpreting the other.#8221; Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at Detection and Treatment, 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. 3. 11. Bioremediation Example. 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 upper class homes, 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 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. Bioremediation. Almenas, Judge Saylor denied without opinion the defendant#8217;s motion to Essay on The of Cameroon 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 the First Circuit. See Almenas v. United States, No. 06-2513. Because the parties in that case have urged the bioremediation court to remand the case on alternative groundsnamely, 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. Essay On Rheumatoid Detection And Treatment. 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 Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of example, 924(e)(1)(B)(ii) because #8220;[t]he act of resisting arrest poses a threat of whites forres, direct confrontation between a police officer and example, the subject of the arrest, creating the potential for serious physically injury to the officer and whites forres, others.#8221; Id. at 455. Because the court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here. Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a #8220;crime of violence#8221; under U.S.S.G. 4B1.1 because any resistance other than simply going limp increases the example possibility of a violent incident. See id. at 1055. 12. The government urged me to consider this alternative holding, even though it had not fully briefed it, in désertification sahel, order to example avoid addressing this issue on of Cameroon a remand, in the event of resentencing.

13. This view accords with the example guidance provided to trial judges in other circuits. Whites Forres. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on bioremediation example different occasions because #8220;it is possible to middle class 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 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 first). 14. The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would #8230; make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the bioremediation 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 Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury#8217;s finding of How Lean Manufacturing Helps Essay, any disputed fact essential to example increase the ceiling of class homes, a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 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 bioremediation find a disputed prior conviction, #8220;the disputed fact here #8230; is the invention of gunpowder too far removed from the conclusive significance of a prior judicial record, and example, too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to upper middle resolve the example 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 Our Economy Essay, several steps. First, an offense is not a #8220;violent felony#8221; unless it is #8220;punishable by bioremediation, imprisonment for a term exceeding one year,#8221; 18 U.S.C. How Lean Helps Essay. 924(e)(2)(B), and a crime is bioremediation 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 discharged from Department of Youth Services (#8220;DYS#8221;) custody. See Mass.

Gen. Essay Early. Laws ch. 120, 21. Example. Gautier notes that for one of the two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and désertification sahel, then discharged at age 21. Based on the foregoing reasoning, he argues, the bioremediation example offense cannot stand as a violent felony under the ACCA. The ACCA, however, is on The Republic of Cameroon not absolute in 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 example, 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)). On Rheumatoid Arthritis: Early. Here, Gautier#8217;s discharge from DYS was accomplished by statute, Mass. Bioremediation. Gen. Laws. ch. 120 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from Essay on The Republic of Cameroon obtaining a license to bioremediation 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 Arthritis: Early Detection 921(a)(20) exception. 16. 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 example, 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 Essay Early Detection, the motivation for the trying the case. 17. Base offense level 24, minus 3 for acceptance of responsibility, and criminal history category IV.

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Example Of Narrative Essay Essays and Research Papers. boot-camp not as a military training program, but rather as a group of individuals who are driven by a common goal? If we can do this then we can begin . making comparisons with other groups of individuals and notice a great deal of similarities. For example , universities offer a wide variety of clubs such as the Philosophy Club or the Student Veterans Organization, and these clubs are formed because like-minded individuals driven by a common goal congregated and bioremediation, bonded to birth their club. Désertification Sahel! Just like. Bond , Bonds, Lancashire , Marine 900 Words | 2 Pages. Pamela Essay 1 Sitting at bioremediation my desk at home, a crushing feeling crept up on Republic of Cameroon me.

I didnt know what to bioremediation example think. Désertification! Im not going to make . it, am I. It was already midway through junior year of high school, and bioremediation, having just calculated my GPA requirements for many of the colleges I had wanted to go to, I realized that my grades were not even close to what I expected them to How Lean Manufacturing Our Economy be. I guess I had been in bioremediation, denial for so long that I let them slip this far. How could I have let this happen? Where was my. Debut albums , Disappointment , High school 1235 Words | 3 Pages.

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A narrative essay uses all the story elements - a beginning and ending, plot, characters, setting and the invention of gunpowder, climax - all coming together to complete the. A Story , Essay , Essays 1444 Words | 5 Pages. How to Write an Accomplishment Essay What are your three most substantial accomplishments, and why do you view them as such? Harvard . http://www.free- essay -writing-topics.com/index.php?page=mba-application-accomplishment-questions What is the most significant change or improvement you have made to an organization with which you have recently been affiliated? Describe the process you went through to identify the need for bioremediation example, change and manage the process of implementing change. What were the results.

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Dot-com bubble , Essay , Essays 2405 Words | 7 Pages. Narrative Essay Vs. Descriptive Essay. ? Narrative Essays Are a Great Read Name ENG121 Professor June 16, 2014 Narrative . Essays Are a Great Read Narrative essays and Descriptive essays can be similar but they are different in nature. The narrative essay I Want a Wife is more compelling than the descriptive essay Homeless because the narrative essay has a point of view, uses humor and satire, and example, uses tone and language that can draw the reader in. Narration is storytelling from the perspective of. Essay , Essays , Homelessness 1604 Words | 7 Pages. ? Descriptive Essays vs. Sahel! Narrative Essays Many people have different preferences on what type of example writing style . they think is désertification sahel more superior to example another, I believe descriptive writing to be more excellent writing style then narrative . I can tell you that there are a few similarities and a few differences between the two. I prefer Descriptive essays , rather than narrative essays . Désertification! In my belief, it's that the descriptive essays are more effective when an author is trying to bioremediation example convey a story or get a. Essay , Fiction , Narrative 1153 Words | 4 Pages. Structure of a Personal Narrative Essay.

Writing Center Structure of whites forres a Personal Narrative Essay Narrative is bioremediation example a term more commonly known as story. . Narratives written for college or personal narratives , tell a story, usually to some point, to illustrate some truth or insight. Following are some tools to the invention of gunpowder help you structure your personal narrative , breaking it down into parts. The Hook Start your paper with a statement about your story that catches the readers attention, for example : a relevant quotation, question, fact, or . First-person narrative , Grammatical person , Grammatical tense 789 Words | 5 Pages. About Narrative Essay Narrative essay is example a popular topic on the Continuous Writing section and . students should take note that this topic has appeared in the SPM examination almost every year since the the invention paper was introduced. Many people think that writing a story is a difficult task, but believe me, it is much easier than what you think because you are not confined to example any particular point.

Therefore, you are free to Manufacturing Helps Our Economy Essay voice out everything that is in bioremediation example, your mind. A narrative essay is a piece of writing. A Story , Character , Essay 1134 Words | 3 Pages. joke about this accident. Things can seem horrible but really are insignificant moments in life. I can look back and laugh hysterically on a day I thought . was the end of the world. Narrative essay assessment rubric/score sheet Due date: __________________ Narrative essays must be typed, double spaced using 12 point font with a 1 inch margin. Headings must be left justified and include name, class period, title and section, assignment and date, and on Rheumatoid Arthritis: Early Detection and Treatment, be single spaced.

Titles. Middle school , Sensory 754 Words | 4 Pages. ?Composition II Eric Sack Fall 2014 Essay 1 - Narrative Argument Write an essay that implies a clear claim and uses . Bioremediation Example! your own first-hand experience for support/evidence. The essay must use appeals involving logos, ethos and pathos, as well as connect with a general audience. For an in-depth discussion of of gunpowder narrative arguments, see chapter 11 of bioremediation Good Reasons. According to the book, narrative arguments rely on concrete individual stories rather than abstract statistics; they allow the readers to draw.

Argument , Essay , Essays 723 Words | 2 Pages. Compare and the invention, Contrast Essay: Narrative and bioremediation example, Descriptive Essays. Compare and Contrast Essay Name Institutional Affiliation Introduction Academicians argue that, a powerful reader paints a picture . on a readers mind. Whites Forres! Writing effective different types of essays is increasingly becoming a critical organ of example academic success (Feng Checkett, 2014, p. 152). There are two major types of essays , narrative and descriptive. Middle Class! While the two might be appropriate in academic writing, one is arguably effective that the other. Bioremediation Example! Narrative essays tells a story from whites forres personal. Essay , I Know Why the Caged Bird Sings , Maya Angelou 1036 Words | 6 Pages. and situations.The very world itself would fall apart on bioremediation the foundation that it was built on without literacy.

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You can also de-construct many images, and the invention of gunpowder, produce a narrative towards the photo, create a story and being able to produce. Anorexia nervosa , Human penis size , Idea 2824 Words | 7 Pages. ? Pontificia Universidad Catolica Madre y Maestra Departamento de Linguistica Aplicada Academic Writing Teacher: Newcombe Rosa . Narrative Essay Participant: Marcelle Lama 2011-5053 November 8th, 2013 Hope they didnt hear! Things arent often what they appear to be at first blush. But embarrassment is. Bioremediation! It was one of those boring days at on Rheumatoid and Treatment school; my friends and I were used to it. Since we were seniors, we used to participate in bioremediation example, the morning act on fridays, as usual for. Blushing , Embarrassment , Humiliation 778 Words | 3 Pages. ?Anthony Santos September 18, 2013 Narrative Essay Professor Wang Unfamiliar Territory I recall the nerves, . sweat, and some tears of my first day of public school in an unfamiliar environment. I was vulnerable and invisible to all the chaos occurring in my peripheral vision. All I remember is of gunpowder seeing an bioremediation example endless sea of désertification faces from bioremediation all different colors, backgrounds, and désertification, ages.

In the moment, I perceived that anyone who survived this madness would be considered invincible. This experience. Cafeteria , High school , Private school 825 Words | 3 Pages. ? NARRATIVE ESSAY NORMAL AGING OR ALZHEIMERS? ENGLISH 101 DUE: 11-03-13 BY MELVA NORZAGARAY Normal aging or Alzheimers ? . I am never going to forget the beginning of the most important lesson life has taught me up to this date. It was a rainy day. The sky was gloomy and the air was blowing cold.

That day was very important to me, because my mother had an appointment with the Neurologist. It was the first time she would visit him. Bioremediation Example! She did not know why we were going to see him. Alzheimer's disease , Caregiving and dementia , Dementia 896 Words | 5 Pages. Achieving the American Dream Gentle, Revised Narrative Essay One would think that purchasing your first home would be a very . fascinating experience; after all it is one of the most major purchases of your entire life. The Invention! In America, home ownership ties in with the American Dream and the spirit of working hard to one day earn through hard work a home with a white picket fence. My husband and I felt that it was time for us to reward ourselves for all the hard work we have been putting in over the. American Dream , Emily the bioremediation Strange , Fence 1287 Words | 4 Pages. Donna Franklin Composition I 3 February 2013 Narrative Essay Significant components of the invention life can happen at bioremediation any time, . Helps Essay! anywhere. Most times people dont know when they happen until years later when those tiny little things lead into example something much bigger.

Things can be as simple as meeting someone in school one day to getting a random text at your grandmothers funeral viewing. Though they can be odd and something one would never expect in a million years, they can also be subtle enough to lead. Family , Friendship , Grandparent 1224 Words | 3 Pages. [pic] Faculty Of Entrepreneurship and Business Group : SAK 1_1 UBI 1022 English Language Mdm. Whites Forres! Lena Ramamurthy Narrative . Bioremediation! Essay My First Day In University Of Kelantan Name : Lim Wee Kiat Matric number : A10A249 Date of submission : 09/01/2011 Narrative Essay My First Day In University Of Kelantan Perplex, that is the feeling that I have when I first came to University Malaysia of the invention of gunpowder Kelantan (UMK). Example! Actually I never thought that I will be coming here to further my higher. Bus stop , Kelantan , Kota Bharu 1560 Words | 4 Pages.

?Wilson Guaman English 101-P Narrative Essay Life is full of surprises and Essay Early Detection and Treatment, difficulties. A twist of fate can make your . life miserable or blooming as the spring flower. Example! When my brother and I used to whites forres live in Ecuador, everything was so amazing. Bioremediation Example! We always used to be so close to each other. Our relationship as brothers was unique and wonderful. Upper Class! I remember we used to go play soccer together every Friday, Saturday, and example, Sunday. We were actually the of gunpowder best soccer players that you can find. But my. American films , English-language films , Family 1102 Words | 3 Pages. ?Sarah Bublitz 03/26/2014 Narrative Essay Have you ever had someone you had a rocky relationship with that doesnt leave . you alone? Well, I have.

Im divorced from this man and he still continues to bother me. He is always around and I cant get rid of him. You might ask me why and Ill tell you. Bioremediation Example! Its because we have two beautiful daughters together and Essay of Cameroon, I have to be an adult and bioremediation, still communicate with him about our children. Why cant he be an adult, I have no idea. Im still trying. Marriage 1062 Words | 2 Pages. Narrative Essay In a persons life friendship is a bond of truth and faith.

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I remember that I went to bioremediation example the pool every weekend with my grandpa, and my parents started making me take piano lessons. Early And Treatment! Second Grade I was thrown into a completely new environment with. Education , Educational years , Elementary school 974 Words | 3 Pages. ?My Narrative Essay I believe that Love at first sight is real. An actual feeling you get when you first lay eyes on that one . special person. Bioremediation Example! More special than anybody youve ever met. The person that your heart just immediately falls in love with and decides that it wants to spend eternity with that person. I believe in Love at first sight because Ive experienced in before. The feeling it gives you is like no other feeling youve ever felt before or ever experienced before in your life. You. A Little Bit , At First Sight , Blond 1019 Words | 3 Pages.

me because of whites forres these experiences. I will remember these experiences for the rest of my life because they each taught me so much. Dear Austin . Baack, You have successfully submitted the file Triple Crown Award to bioremediation example the assignment Narrative essay in on The, the class 2nd Hour Ginder World Lit. on example 06-Nov-2014 12:35AM. Your submission id is 474225051. Your full digital receipt can be downloaded from the download button in your class assignment list in Turnitin or from the print/download button. Boy Scouts of America , Canoe , Florida National High Adventure Sea Base 988 Words | 5 Pages. Derek Smith Keith M. McLure English 101 02/17/2013 Narrative Essay : Specific Life Event Many philosophers have came to a . conclusion that life experiences; good or bad are what make us better people.

These experiences guide us through our future and give us wisdom to withstand the unexpected obstacles that come our way in homes, the process of example reaching the How Lean Manufacturing Helps Our Economy American Dream. Bioremediation Example! Some may argue that we are in a survival of the fittest mentality. Essay Republic! I firmly believe this statement is true. My own life journey. American Dream , Chef , Dream 1054 Words | 3 Pages. Megan McMinn Professor Petas Bonaparte English 1920 20 December 2012 Narrative Essay Julias Success As the . Example! May graduation ceremony finished, all the high school graduates threw their black and gold caps in the air and joined in upper middle class homes, cheering with the friends and family still in their audience seats. Still on the stage from giving a speech and thanking her parents for helping her through the years, Julia rushed to go hug them as they congratulated her on her success. Anti-obesity medication , Fenfluramine , Girl 1229 Words | 7 Pages.

The Butterfly Effect Narrative Essay. Alyssa Iannotti Art of The Moving Image Narrative Essay November 28, 2007 The Butterfly Effect . Narrative form is simply a type of filmic organization in which the example parts relate to one another through a series of Essay on Rheumatoid Arthritis: Early and Treatment casually related events taking place in time and space. Narration usually occurs in a cause-effect relationship. There are many factors of narration but range and depth are the most important. The range refers to how much we know in bioremediation example, the plot. Range connects characters and. Ashton Kutcher , Eric Bress , Film 1208 Words | 3 Pages. ? Narrative Essay Wow, senior year of High School could not have gone faster.

It felt as if I blinked and whites forres, three years of high . school passed by. Everyone was worried about college acceptances and I was just worried about enjoying the last year of high school with my friends as it came to a close. Football season was the bioremediation example best time of the year as we practiced every morning at six. On The! Our High School had won twelve state championships in the last thirteen years and example, we were prepared to win another one that. American football , Anterior cruciate ligament , College 1071 Words | 3 Pages. August 28, 2008 English Narrative Essay My Unplanned Weekend It was a Thursday afternoon and I was patiently . sitting in my chair at school talking to my friend Tanya about what we were going to désertification sahel do that weekend. I hear a voice say Mr.

Johnson can you send Lynn to bioremediation the office for check out. I was excited because this meant I did not have to How Lean Helps Our Economy Essay go to math class. Bioremediation Example! As I arrived at the office, I saw my sister she looked as if something was wrong. Kimberly, what is wrong? I will tell. English-language films , Family , Grandparent 989 Words | 3 Pages. age of How Lean Manufacturing expansion following on bioremediation an age of discovery, its expansion led to still further discovery about architectural design and decoration. Section A: . Interiors S.Maria Della Salute (1631-1682) The interior of S.Maria Della Salute is a very good example of Baroque Architecture and design. It displays the Baroque essence in Helps Our Economy Essay, a way but is not completely over example ornamented nor does it contain any unsuitable details. Marble is mainly used in the columns and the base appears to be gilded in bronze.

Sculptures. Baroque , Baroque music , Dome 1264 Words | 4 Pages. Kevin Heart . 4-3-12 English-110 Narrative essay Murder is the unlawful killing of Essay Republic of Cameroon another human being with malice afterthought, and generally this state of mind distinguishes murder from other forms of example unlawful homicide (such as manslaughter). As the whites forres loss of a human being inflicts enormous grief upon the individuals close to the victim, as well as. Capital punishment , Capital punishment in example, the United States , Death 1056 Words | 3 Pages. within a narrative are very important. They help set the stage so the reader can understand the story from the authors perspective.

A . narrative is structured so the reader can see things clearly. The structure contains the introduction, the body, and How Lean Helps Our Economy, the conclusion. Bioremediation Example! The introduction has a thesis statement. A thesis statement is a sentence that states the main point of the the invention narrative . The introduction will clarify the main points the writer will make throughout the body of the narrative . The body. Automobile , Bicycle , Causality 1419 Words | 4 Pages. Sarah Parker Eng 102 Narrative Essay Degree Choice Everyone in the world has a journey to find their passion. Whether it . be short, long, thought-out or impulsive, people may find out what career field they'd like to join. Once one discovers their passion and what career path to follow, they are then made to pursue a degree that will help them excel. For some it took only moments to bioremediation decide their fate; it takes some only whites forres, a simple decision towards what path they want to take. It took me years. Academic degree , Associate's degree , Bachelor's degree 1423 Words | 4 Pages.

K. Rogers 2-26-13 Crazy Canine Catastrophe narrative essay There was a calming familiarity of the bioremediation obnoxious clanging . of pots and pans in whites forres, the kitchen that morning, as I began to wake up to bioremediation example the sight of whites forres another seemingly unrelenting snow storm. I wiped off the greenish, yellow crust that had built up around my eyes from the night before and bioremediation, glanced out upper class homes through the iced-over window pane in my room. I couldn't see further than fifteen yards in any direction, barely being able to make out. Mother 1761 Words | 4 Pages. Name: Jamin Clubb English 1101 Class 425 9/20/11 Narrative essay I remember Valentines Day this past year like no other; . it was on a Monday this year. Mondays for my wife and bioremediation, me were like our Fridays, we both worked weekends, and for years never got to go out much; that was until we discovered half priced beers at a place called World of Beer. That became our normal spot; we even got a large group of friends to come out with us every Monday night for drinks and games at désertification sahel the bar. Bioremediation Example! About a. Debut albums , Doctor , Human chorionic gonadotropin 1124 Words | 3 Pages.

English 101 Narrative Essay In Death, You Live Forever Can you get me a glass of water? my mother whispered in a hoarse . voice. I nodded and quickly escaped the dimly lit bedroom to fetch my mother a glass of water from the whites forres kitchen. She said she wanted water, and I believed her one hundred percent, but I knew that she had another motive for sending me out of the room. She wanted to speak to bioremediation example her friend, Angelo, in private. Upper Middle Class! I knew she would be talking to him about her condition, but thats. Barbie , Bild Lilli doll , Book 1519 Words | 4 Pages. Camacho Narrative Essay Week 5 Revision There can be major physical changes and effects to a females body after having a . child. Bioremediation! In 2011 when I had my son the hospital gave me an epidural for the pain; they did the shot too high up on my back. As far as anyone knew I was fine. Essay On The Republic Of Cameroon! I showed no signs of bioremediation example problems until after I got out upper class of the hospital, when I started having back spasms due to example the fact that the epidural was done incorrectly. The female body goes through many natural changes; it prepares.

AIDS , Bile , Bile duct 1154 Words | 3 Pages. Compare-Contrast Essay Eng121: English Composition I (AXC13480) Regina McKinney Professor: Nancy Segovia January 1, 2014 A . narrative essay is Essay on The about storytelling for bioremediation, a narrative story to work it must capture and désertification, hold the example audience attention you must give a clear understanding of your story. A descriptive essay lets you describe in Essay of Cameroon, detail what the essay is all about using words that appeal to your sense of example smell, hearing, see, touch, and whites forres, taste. A descriptive essay lets you use words that. Essay , Maya Angelou , Narrative 1226 Words | 4 Pages.

SECRET TALENT When we talk about talent then first question that comes in our mind is what is talent? .Talent is any natural ability or power of a . person. Talent actually means that someone has special ability or power in some specific field. For example someone has power to change the peoples mind through his/her speaking power it means that that person has speaking ability and power in example, his/her voice that can affect the peoples mind. Its called talent. Essay On The Of Cameroon! Talent is natural ability it builds self-confidence. Billboard Hot Dance Club Songs number-one singles , Cognition , English-language films 760 Words | 3 Pages. old skills.

Been a volunteer can help many people in bioremediation example, the world. Such as people who are in whites forres, the hospitals suffering from sicknesses that they no cure also . people who are without family and bioremediation example, many kids that are suffering from very bad sicknesses for example , cancer IDS. Many people who have cancer and whites forres, IDS are the bioremediation most needed suffer people in the hospital according to the National Cancer Institute cancer and IDS affect the the invention whole family not just the example person with the disease. These means that people who. Hospital , National Cancer Institute , Volunteer 1429 Words | 4 Pages. An Example Of Narrative Animation. ?An Example of Narrative Animation: Duck Amuck During the golden age of Hollywood short cartoons, from the 1930s to the 1950s, . Disney and Warner Bros. were rivals.

Disney animators had far greater resources at their disposal, and their animation was more elaborate and detailed than the simpler style of the Warner product. Warner cartoonists, despite their limited budgets, fought back by exploiting the sahel comic fantasy possible in animated films and bioremediation, playing with the medium in imaginative ways. Helps Essay! In Warner. Animation , Bugs Bunny , Chuck Jones 1216 Words | 3 Pages. Examples from Reflection Essays Disciplinary Awareness The research I did this summer focused on sorption of cesium and . strontium by soils. Example! These two chemicals are commonly found in chemical contaminants My research also focused on upper middle class homes the distribution coefficient which is a measurement of how much of example a solvent is [absorbed] by upper, a geologic medium. I found that many of the readings I came across regarding abortion seemed to convey a strong belief in bioremediation, human rights, which was demonstrated by the dichotomy. Abortion , Clean Water Act , Human rights 1543 Words | 5 Pages. Example Essay He that is whites forres good for making excuses is bioremediation seldom good for anything else. -- Ben Franklin. As early as the . founding of the United States of America, Mr. Franklin observed society using the Essay of Cameroon excuse, I don't have enough time and bioremediation example, it negative effects on their lives. How Lean Manufacturing Essay! Today, it is frequently used as an bioremediation excuse to class justify the lack of example time management skills.

The effects on kids, work, or even in family life are sometimes devastating. Upper Middle Class! In a day there are 24 hours, and time is bioremediation example available. Benjamin Franklin , Family , Franklin Planner 950 Words | 3 Pages. surprised to find three judges, different from the previous year. Désertification! My face literally turned as bright as the sun when I did not see the judge that absolutely . detests my teacher, *a*c* *e*s*n (for privacy reasons, I will exclude her name from this essay ). I turned as hyper as a kid could become, and I was about to example scream from happiness right then. Désertification! Every single time I am in a competition, and shes a judge, she always marks me down. Luckily, she was not here this time, and instead, sitting in example, her. Competition , Debut albums , Mess 1337 Words | 4 Pages.

idea of ghosts is far too exaggerated to be real. According to whites forres psychologydictionary.org the paranormal is designating any phenomenon comprising the . Example! transfer of data or energy which can't be described by present scientific insights (What). For example , a couple of years ago I was in my house alone. I was walking towards the front door and a pair of the invention of gunpowder scissors fell from the countertop and on to the floor. It scared me to death and it was like the scissors had been thrown.

I do not know if it was. Cryptid , Ghost , Loch Ness Monster 1320 Words | 5 Pages. mess you up for life. Example! Therefore these experiences will become a necessary example to teach you how to deal with the unfairness . in How Lean Helps Essay, life. When I first started middle school I felt so out of place, I mean I had to deal some very flaky people and I was very stressed out a lot. The reason why I was so stressed out bioremediation example was because of the changes that I had to Essay Republic of Cameroon endure around and to me. For example I had to bioremediation example deal with the disturbing fact that I was growing hair in various places on my. College , English-language films , High school 1128 Words | 3 Pages. ? Eng 121 Narrative Essay 02/13/2014 Education is the key to success and as such the only way to get to whites forres the top. Bioremediation Example! As the . Essay Early Detection And Treatment! late president Nelson Mandela said, It always seems impossible unless its done. I was fourteen years of age when this incredible opportunity came for me to join the Bournvita brain match quiz club sponsored by example, Cadbury as a representative for upper class homes, my junior high school.

On my journey to the quiz club, I learnt how to example associate with people, listen and the invention, not. College , Grammar school , High school 1573 Words | 4 Pages. Keba Raye Eng 101 (online) Narrative Paper / Final Draft A DANCER WAS BORN I had only hours until those big red curtains slowly dragged . apart. I had been practicing for the most important showcase of the year for over a month now. Bioremediation! I t was my first solo performance and the invention of gunpowder, my nerves were rattling. I was only nine! How was I supposed to handle the most important part of the entire routine all on my shoulders? I stared around at the gym. Today it seemed extremely larger than any other day.

All. Dance , Lunch , The Showcase 897 Words | 3 Pages. ?John Doe Professor Mansito ENC 1101 12:00-1:50 21 October 2013 Essay 1 Sexuality: The 1950s to Today Sexuality, like many other . Bioremediation! things in our world, is an ever changing thing. The ideas and connotations surrounding it change from désertification sahel generation to generation. Example! Because of this, the the invention of gunpowder idea of bioremediation example sex in the 1950s is Essay completely different from the idea of sex today. Today, sexuality can be expressed in almost anything we do. Commercials, billboards, TV shows, movies, magazine articles, and many other. 20th century , 21st century , Global warming 1105 Words | 4 Pages. ?Alena Professor Okun ENC 1101 3 February 2014 Narration Essay Number One Growing up nothing ever affected me as much as the time when I . saw my baby sister in agony. Example! Cecelia was only two years old at the invention the time and yet she had already gone through something so horrific and bioremediation example, frightening for a toddler to experience. I could not understand what was happening as I was only a little girl.

The feeling that I had in the pit of my stomach left me feeling petrified because it was truly one of my worst. Advanced Trauma Life Support , Burn , Doctor 1667 Words | 4 Pages. other areas) show specific anatomical and functional features in professional and semi-professional musicians. One of the most visible . How Lean Manufacturing Helps Our Economy! benefits of playing a musical instrument is the bioremediation improvement of memory capacity and ability. For example , the constant use of both the Essay on The left and right hemispheres of the brain simultaneously in bioremediation example, someone who plays the the invention of gunpowder piano exercises memory. Thanks to this, it is also believed that people who play musical instruments are less prone to have neurodegenerative.

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Is it Possible to bioremediation Upgrade Your Military Discharge? If you're interested in upgrading your military discharge, review these tips to learn how, when and Essay and Treatment, where to bioremediation go for help. The History of How Lean, Military Discharges. To understand the process of upgrading your discharge, it's first important to get a handle on example the history of the of Cameroon process. Once upon example a time (pre-1975), the Army illegally gave other-than-honorable discharges to many service members as the result of compelled urinalysis testing for the purpose of drug rehabilitation (either for entry into a drug program, or to monitor progress while in such a program). In 1979, giving a less-than-honorable discharge for such testing was deemed illegal. On Nov. 27, 1979, the Essay Republic United States District Court for the District of Columbia in ''Giles v. Secretary of the Army (Civil Action No. 77-0904), ruled that a former Army service member is bioremediation entitled to an honorable discharge, if discharged before Jan. 1, 1975, as a result of an administrative proceeding in which the Army introduced evidence developed by Essay on Rheumatoid Arthritis: Early Detection or as a direct or indirect result of compelled urinalysis testing administered for the purpose of identifying drug abusers. In other words, the court said it was okay to discharge for such urinalysis results, but it was not okay to base the service-characterization on such results.

When the court ruled against the Army for this practice, the Army established a program which allowed soldiers who were involuntarily discharged under the above circumstances to get an automatic discharge upgrade. This policy launched an ongoing rumor that anyone who receives a discharge lower than honorable could easily get their discharges upgraded. Unfortunately, getting a discharge upgraded is neither easy nor automatic. While anyone can apply to the appropriate Discharge Review Board (DRB) for a discharge upgrade or a change in the discharge reason, the individual must convince the board that their discharge reason or characterization was inequitable or improper. Inequitable means the reason or characterization of the discharge is not consistent with the policies and traditions of the service.

Improper means that the reason or characterization of the discharge is in error (i.e., is false, or violates a regulation or a law). For example, an bioremediation example, Inequity would be: My discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action. Improper would be: The discharge is improper because the on Rheumatoid Arthritis: applicant's preservice civilian conviction, properly listed on his enlistment documents, was used in the discharge proceedings. Your Right to example Apply for Correction of Records. Any person who has been discharged or dismissed may apply to the appropriate service's DRB. The Army, Air Force, and Coast Guard have separate boards. The Navy operates the board for class homes, both Navy personnel and bioremediation example, members of the United States Marine Corps. Title 10, United States Code, Section 1553 is the law governing upgrading military discharges. This statute authorizes the secretary of the service concerned to establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is upper homes dead, his surviving spouse, next of bioremediation, kin, or legal representative. The boards are not allowed to revoke a discharge or recall a person to active duty.

Bad conduct discharges imposed by Special Court-martials are reviewed only as a matter of clemency. When and on Rheumatoid Early Detection, How to Apply for an Upgrade. Under the law, you must make your application for discharge upgrade within 15 years of discharge. If your discharge is older than 15 years, you must apply for a change to example your military records. Application is a simple process.

You should use a DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States . In addition to downloading the form, The DD Form 293 is available at most DoD installations and Helps Essay, regional offices of the Veterans Administration, or by writing to: Army Review Boards Agency (ARBA), ATTN: Client Information and Quality Assurance, Arlington, VA 22202-4508. Sign up for bioremediation, the Doyle Report and get expert job-hunting advice sent straight to your inbox, with tips on writing a great resume and acing your interview! Contact them by phone at (703) 607-1600. You should complete the form very carefully by typing or printing the requested information. Attach copies of statements or records that are relevant to Essay on Rheumatoid and Treatment your case. Make sure you sign item 9 of the form. Mail the completed form to the appropriate address on bioremediation the back side of the form. The board will upgrade your discharge only if you can prove that your discharge is inequitable or improper. You do this by providing evidence, such as signed statements from you and other witnesses or copies of records that support your case. It is not enough to provide the names of witnesses. Of Gunpowder! The board will not contact your witnesses to obtain statements.

You should contact your witnesses to get their signed statements with your request. Your own statement is important. Put your statement in bioremediation example, clear terms in section 8 of the DD Form 293. Essay On Rheumatoid Early! Make sure you carefully read the example instructions on Essay on The Republic of Cameroon the back of the form. Explain what happened and why it is an inequity or improper.

Normally, the best evidence is statements from persons who have direct knowledge or involvement. For example, statements from persons in example, your rating chain, your supervisor, first sergeant or commander or a statement from the chaplain, or anyone else with direct knowledge of How Lean Essay, your military service. The board is not going to bioremediation example be interested in your behavior or conduct after you left the military. Contain your statements to periods which were directly related to Helps Our Economy Essay your military service. Example! This is only a general rule, however. You must decide what evidence will best support your case. It may take you some time to gather statements and on Rheumatoid Arthritis: Detection and Treatment, records to example support your request. You may wish to delay submission of your application until information gathering is complete.

You might wish to request a copy of your military records from the National Personnel Records Center (NPRC) to include with your application. You should submit your request within the 15-year time limit. With few exceptions, the How Lean Manufacturing Helps Our Economy DRB can consider all discharges for upgrade. Bioremediation Example! The board cannot, however, change a punitive discharge imposed by a courts-martial. Most applicants represent themselves. If your request is complex, you may want someone to represent you: Many veteran service organizations have staff members who will represent you in applying to the board and assist you in Early and Treatment, completing the bioremediation example necessary paperwork. You may also hire a lawyer to represent you at your own expense.

You should name your representative on DD Form 249, item 6. If you name a representative, the board will normally deal with your representative rather than directly with you. Advice and guidance are available from many sources. Military Personnel specialists can advise you on sahel personnel issues. Veteran service organizations will advise you even though you decide to bioremediation represent yourself. You may discuss your case with a board staff member, or you may write to the board, and a staff member will respond to your questions.

Several attorneys specialize in military discharge review processes. Mail the completed DD Form 293 to the appropriate address: ARMY: Army Review Boards Agency, Support Division, St. Désertification Sahel! Louis, ATTN: SFMR-RBR-SL, 9700 Page Avenue, St. Louis, MO 63132-5200.

NAVY MARINE CORPS: Naval Council of Personnel Boards, 720 Kennon Street, S.E., Rm. 309 (NDRB), Washington Navy Yard, DC 20374-5023. AIR FORCE: SAF/MIBR, 550-C Street West, Suite 40, Randolph AFB, TX 78150-4742. COAST GUARD: Commandant (G-WPM), 2100 Second Street, S.W., Washington, DC 20593-0001. Personal Appearances Before the Board. You may request a personal appearance before the board by checking the bioremediation appropriate box on DD Form 293, item 4. If you request a hearing, the board will notify you as to Republic time, date, and bioremediation example, place (usually Washington D.C., although there are times when the board travels to regional areas to conduct hearings).

Expenses incurred are completely your responsibility. The government will not reimburse you for travel expenses. If you, after being notified by letter of the time and Essay of Cameroon, place of the hearing, fail to appear at the appointed time, either in person or by bioremediation example representative, without having made a prior, timely request for a continuation, postponement or withdrawal, you will be deemed to have waived the right to a hearing, and the DRB shall complete its review of the whites forres discharge. The board will not grant another hearing unless you can demonstrate that the bioremediation example failure to appear or respond was due to circumstances beyond your control. Your hearing before the board is an administrative hearing, not an adversarial proceeding or a trial. The purpose is to determine whether your period of service was properly characterized.

Only one of two things can happen: (1) your request can be granted or (2) your discharge can remain the same. Before your board appearance, you should review the examiners brief prior to your hearing. This brief is a summary of the available military records in your case. It contains the essential facts in your case and is put into a format that is easily read by the board members. One board member is designated as the action officer for Manufacturing, your case.

The action officers job is to go through your entire record and compare it to the brief, making sure the brief is absolutely correct. Bioremediation Example! In doing so, this individual becomes very familiar with your case. If any of the board members have questions concerning the documentation in your record, either during the hearing or afterward during the board deliberations, these questions will be addressed to the action officer who will get the document in middle class homes, question for the decision of the bioremediation example board. The board is usually composed of sahel, five active duty officers and bioremediation, senior enlisted personnel. Désertification Sahel! They will usually be dressed in civilian clothing, which is purely for your benefit; to help put you at ease and to create a more relaxed atmosphere. They each cast one vote and bioremediation example, the majority rules. In regard to testimony, for the purpose of this hearing you have the right to remain silent, give sworn testimony or give unsworn testimony. If you choose to give sworn testimony youll take an the invention, oath and then each board member will have the opportunity to ask you questions either about bioremediation your testimony, something in the record or essentially anything they feel might give a greater insight into your case.

The board believes that sworn testimony is important because in the absence of being able to ask questions, there is no way the board members can establish your creditability as a witness. The questioning process has a way of drawing out the désertification truth. Example! If you do decide to give sworn testimony and are asked a question you don't wish to answer, you don't have to answer it. Of Gunpowder! The decision as to which form of testimony you give, if any, is entirely yours. The hearing will be recorded. It provides a record of the example proceedings but beyond that, it gives the board a chance to rehear your testimony after you have left the room and Essay on Rheumatoid Early Detection, sometimes this can be very important. No one has access to the recording except you and the board members. Bioremediation Example! You can get a copy by Essay Arthritis: Early simply asking for it; no one else can get a copy without your written permission. When you go into the hearing room the board member designated as the bioremediation example recorder will start the recording device and the president of the board will call the board to order.

The action officer will then read into the record that the board is meeting to consider your case, that you're are present and are or are not represented by counsel and will introduce exhibits into Essay on Rheumatoid Arthritis: Early Detection evidence, such as your application, your letter of bioremediation, notification of when to sahel appear, orders that appoint the board, officers of the board, your records and the examiners brief and your issues. Youll then be asked what form of testimony, if any, you wish to give. Example! The hearing normally takes less than an hour but the whites forres board will take whatever time is necessary to bioremediation hear your case. There is whites forres no time limit. If you have counsel, your counsel will likely make an opening statement on your behalf then ask you questions. If you are giving sworn testimony, the board members will ask you questions, your counsel will then make a closing statement on your behalf and example, then you will have a final opportunity to address the board. After you are excused, you may leave immediately. The board will then go into deliberations and reach its decision. It will take about six to sahel eight weeks for bioremediation example, you to receive the board's decision.

If your discharge is changed you will receive a new discharge certificate, a new DD form 214, and whites forres, the decisional document of example, this board. On The Republic! If your discharge is not changed, you will receive the example decisional document of this board, which will include the specific reasons your discharge was not changed and will also include any further appeal process, which is applicable to you. Changing Reenlistment Eligibility (RE) Codes. The Armed Forces use Reenlistment Eligibility (RE) codes to Essay of Cameroon categorize individuals for enlistment or reenlistment in the Armed Forces. RE codes in the '1' series indicate a person is example eligible for immediate reenlistment or prior service enlistment, provided otherwise eligible. RE codes in the '2', '3' and '4' series restrict the individual from immediate reenlistment or prior service enlistment. You must receive a review and/or waiver of these RE codes before you are eligible to enlist again. There are many qualified prior service applicants who possess a '1' series RE code who will not be able to reenter the military due to specific needs of the service. Essay On Rheumatoid Early And Treatment! (See article on Prior Service Enlistments). In most cases, a person with a 2 RE or 4 RE code is not allowed to bioremediation example enlist. Those with an RE Code of 3 may be allowed to enlist, with a waiver, if they can show that the reason for discharge no longer applies.

Such waivers are granted through the individual services through military recruiters, not the DRB process. The Discharge Boards will not directly consider a request to change the How Lean Our Economy RE code in the DRB process. There is one exception: If the DRB upgrades an applicant's discharge, the board will also consider whether the RE code should be changed. If the bioremediation applicant is considered a good candidate to return to the military, the of gunpowder RE code will be changed to 3A--a waiverable code. Any request to directly consider a change to RE code not involving change to the characterization of bioremediation example, service and/or narrative reason for separation must be made through the appropriate Board of Correction for Military Records . If you are seeking a waiver or change of the RE code for the purpose of entering another branch of service, you will need to contact the appropriate service recruiter. The prerogative to waive the individual's RE ineligibility based on post-service performance and conduct rests with the the invention of gunpowder Secretaries of the Army, Navy, and Air Force.

Each Secretary may allow an individual to bioremediation example enlist in the service under his/her jurisdiction. The Secretary of one branch of the Armed Forces has no authority to waive reenlistment/enlistment ineligibility for Republic, another service. Bioremediation Example! For example, if a former Army member wishes to enlist in the Air Force, he/she must process through Air Force channels for prior service enlistment. If the RE code renders the Our Economy Essay veteran ineligible, he/she must process any review or change action through Army channels.