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bigraphy Kenneth Grahame, the third child of Cunningham and Bessie Grahame, born in Edinburgh at 32 Castle Street on Values of Miss America, 8th March 1859. When Kenneth was barely a year old his father obtained the post of Sheriff of Argyll and the family moved from Edinburgh to Argyll. At first they lived in Ardrishaig while a new house was being built for glorious revolution summary them. Values Of Miss America. The building lasted more than two years and the family also lived a few months in Lochgilphead before moving into their new home in Inveraray. Their enjoyment of their new home was short lived. Shortly after Kenneth's fifth birthday, March 1864, his brother Roland was born but a few days later his mother went down with scarlet fever and died after a short illness on 4th April 1864. Misconceptions Working. Kenneth himself also went down with the same illness and struggled with it for Values Essays several weeks before he recovered. During his illness Granny Inglis, Bessie's mother, came from her home in Berkshire to Inveraray to nurse the exposition summary child. After Kenneth's recovery it seemed clear that his father, who had succumbed once more to an old drinking problem, would be unable to look after the four children - Helen, Willie, Kenneth and Roland. The children moved to The Mount in Cookham Dene, the home of Granny Inglis.

Their time at Cookham Dene seems, in spite of the circumstances, to have been some of Kenneth's happiest years. Values Essays. The Mount was a charming old house with an attic and a large garden in which the children could play. The majestic Thames river was nearby, fostering in Kenneth a lifelong love for the river and boating. Misconceptions Working Parents Essay. But at Christmas 1865, after living less than two years there, the chimney of the house collapsed and Values of Miss America the children moved to Fern Hill Cottage in Essay of Tobacco and How the Human Cranbourne. This was a smaller house some miles away from both Cookham Dene and the Thames. During their time at Cranbourne their father made an attempt to overcome his drinking problem and arranged that the children would return to live with him in Argyll.

The children spent most of the Values America Pageant Essays year of 1866 back at their former home in Inveraray. In the end their father relapsed into his old ways and accomplishments of john adams left his children, his job and Argyll, to move to France. (It would seem that there was no further contact between Cunningham Grahame and his four children for the remaining twenty years of his life. Values Of Miss Pageant Essays. Cunningham Grahame died in a man almost a man Le Harve in 1887 and Kenneth was the only one of his children to attend the funeral.) The children returned from Argyll to Cranbourne and Kenneth lived there until he started school at St Edward's in Oxford in1868, at the relatively late age of nine years old. His account in the essay he wrote in Values of Miss Pageant Essays later life, Oxford Through a Boy's Eyes , would seem to indicate that he attended St Edwards in the years while it was still in New Inn Hall Street and also attended the new school which opened on the Woodstock Road. A Man. His early years at America, school were a challenge but, by the time he left St Edward's, he achieved numerous academic and lack of morals sporting accolades - Head Boy, captain of the Rugby XV, the Values Pageant Essays Sixth Form Prize, the Essay Products and How Affect the Human Divinity Prize and the Prize for Latin Prose. Values Of Miss Pageant Essays. Undoubtedly Kenneth had the academic ability to study at and How Affect the Human, one of the Oxford universities, and it was his dream to do so.

But his uncle, John Grahame, refused to finance his studies and Kenneth was obliged to seek a post in the Bank of England instead. He worked in the family business while waiting for the post in the bank to become available. Kenneth lived at Draycott Lodge in Values of Miss Fulham with another uncle, Robert Grahame, in this period. Interestingly, Kenneth sat an entrance exam for revolution the Bank of Values Essays, England and received full marks in lack of morals the English essay paper. This result was an unheard-of feat in the bank's history, both before then and Values America afterwards. Two years later the post in the Bank of England became available and in glorious revolution January 1879 Kenneth took up the duties of clerk at the bank's headquarters in Threadneedle Street in Pageant Essays London. As Draycott Lodge was quite a distance from the bank Kenneth also moved to lodgings in Bloomsbury Street around the same time. During his early years in London, and revolution summary even before beginning to work with the Bank of England, Kenneth became acquainted with some leading literary figures and began to socialise in literary circles.

His own writings were kept fairly secret at first, with a few essays being published under a penname in St Edward's Chronicle, the school magazine of of Miss America Essays, his former school. From 1888 onwards essays began to Misconceptions Working Parents appear under his own name in literary magazines like St James's Gazette, the National Observer and The Yellow Book. The National Observer, initially named The Scots Observer, had a number of Pageant, other illustrious contributors including Kipling, Shaw, Stevenson and Yeats. Atlanta. Many of Kenneth's essays were republished as a collection under the title Pagan Papers in 1893 - the title representing an appreciation of nature rather than any form of sinister, medieval ritual! Among the America Essays essays which he wrote several were about a family of orphaned children - Edward, Selina, Harold, Charlotte and an unnamed narrator. These stories about the on Use of Tobacco Body children and of Miss America Pageant Essays their guardians, referred to as the Olympians, have autobiographical overtones. They appeared in the first edition of Pagan Papers but were excluded from lack of morals all subsequent editions. Kenneth wrote several further stories about these children and in 1895 a total of eighteen of these short stories were published in of Miss Essays The Golden Age . Dream Days , a further collection containing eight, somewhat-longer stories about these children, was published in 1898.

The Golden Age and Dream Days , although they have paled into lack of morals relative insignificance beside The Wind in the Willows and are not widely read today, received huge acclaim when they were first published. Another short story with the title The Headswoman - a humorous satire about an executioner - appeared in of Miss Pageant Essays The Yellow Book in About Essay 1894 and of Miss America Essays was later published as a stand-alone volume in 1898. It seems to of Tobacco and How They have had an unspectacular reception and, in of Miss Pageant Essays the end, was the only book about adults for adults which Kenneth wrote. In this period Kenneth moved house several times - to lack of morals 65 Chelsea Gardens around 1886, to 5 Kensington Crescent in 1894 and to 16 Durham Villas in 1899. America Pageant. He also spent many of his holidays in Cornwall in these years, the seaside town of Fowey being one of his favourite resorts there. In 1897 Kenneth met Elspeth Thompson. On 22nd July 1899 they married in Fowey, spending a week in St Ives afterwards for their honeymoon. A Man Who Was. It was not a very satisfying marriage for either Kenneth or Elspeth. To make matters worse, Alastair, their only child, was born prematurely on 12th May 1900, blind in Values of Miss America Pageant one eye and with an evident squint in the other. Unfortunately the Grahame's could never quite acknowledge Alastair's physical disabilities and average intellect.

They, especially Elspeth, lived out a fantasy in which they believed that Alastair was a gifted child. Kenneth was promoted in 1898 to Misconceptions Working Essay the position of company secretary of the Bank of England, a very significant position indeed, and, at thirty nine, he was one of the youngest men to ever hold that position. Although he was a keen sportsman at school and enjoyed walking and boating throughout most of his adult life, he did not have good health. This was probably a legacy from the scarlet fever he suffered just after his mother's death. In latter years at the bank Kenneth was absent for lengthy periods owing to illness. In 1903, in a bizarre incident, a stranger entered the bank?s offices in Threadneedle Street, asking to see the Governor.

In the Values America Pageant Governor?s absence Kenneth, in his role as company secretary, met him. The two exchanged a few words of introduction and of Tobacco and How Affect the Human then the stranger produced a pistol and fired off a few shots. Fortunately Kenneth was unhurt. Of Miss America. Kenneth worked on in the bank for a few years after the gunman incident, But his health problems together with a general disenchantment with the bank prompted him to take early retirement in June 1908. In 1904, when Alastair was about four years old, his father used to tell him bedtime stories.

Some of these stories were about a Toad, and indeed they were the foundation of the latter chapters of The Wind in the Willows . Shortly after the period in which Kenneth told these bedtime stories he holidayed alone and wrote further tales of Toad, Mole, Ratty and Badger in letters to Alastair. (These letters were preserved by Elspeth and published in First Whispers of the Wind in the Willows a few years after Kenneth's death.) After Kenneth?s retirement from the bank the Grahames moved from Durham Villas to an old farmhouse in Blewbury near Didcot. Life moved at a man almost a man, more relaxed pace and Kenneth had time to America Pageant complete The Wind in the Willows . Surprisingly, the who was almost a man first publishers rejected it, and it was not until October 1908, after several rejections and of Miss America Pageant some pro-active campaigning by President Roosevelt in the United States, that the book was finally published by Methuen and Co. The critics, who were hoping for a third volume in the same style as The Golden Age and Dream Days , did not give The Wind in the Willows much praise. The majority gave it a negative review. The public loved it, however, and within a few years it sold in such numbers that many reprints were required. The rest, as the saying goes, is history. President Theodore Roosevelt visited Oxford in 1910 and gave a lecture in the Sheldonian Theatre.

The President of Magdalen College arranged the lecture and, in response to a question on whether there was anyone he?d like to meet, Roosevelt asked to see three or four people including Kenneth Grahame and Rudyard Kipling. Kenneth travelled down to Oxford to attend the lecture and spoke with Roosevelt afterwards. Summary. The success of The Wind in the Willows was tempered, however, by Kenneth?s domestic problems, especially those concerning Alastair. Although the Grahames attempted to live out a fantasy surrounding him, as if he were a gifted, intellectual, lovable child, the Values of Miss America truth was somewhat different and, when he began to attend school that reality became evident. As his schooling progressed he became more and more of glorious revolution, a misfit and of Miss America the struggle to lack of morals reach the academic expectations that his mother, in particular, had, became an unbearable burden. After unsuccessful spells at Values of Miss America, Rugby and Eton, he attended Christ Church at Oxford. On May 7 th 1920, in his second year there, he took an exposition evening walk from Christ Church to a level crossing on the railway line between Oxford and Wolvercote. He was found dead on the tracks the following morning.

The verdict was accidental death, but virtually all the aspects surrounding his death point to suicide. The Grahames were devastated. After the funeral they spent a long time holidaying abroad ? almost all of the following four years. Most of this time was spent in Italy. After The Wind in Values of Miss America the Willows and, more so, after Alastair?s death, Kenneth wrote very little ? just an occasional essay or introduction to a book.

In 1924 the Grahames moved to Church Cottage in the village of exposition, Pangbourne. Pangbourne is quite close to Oxford and it would seem that Kenneth made frequent trips to Oxford. Strangely, there is little or no record of him visiting London again in Values of Miss Pageant Essays these years. On July 6 th 1932 Kenneth died at his home in atlanta address summary Pangbourne from cerebral haemorrhage and on the following Saturday he was buried in Holywell Cemetery in Oxford in Values America Essays the same grave as his son Alastair. His wife Elspeth died in who was almost 1946. Kenneth Grahame was a gentleman of great intelligence, wit and literary ability, whose creations, especially the characters of America Pageant, The Wind in the Willows , have brought pleasure to countless millions.

It is hoped that this Kenneth Grahame Society website, launched 75 years after his death, will represent some little tribute to him and to his contribution to literature. A full list of the biographies of Kenneth Grahame can be found in the Bibliography section. Peter Green?s second edition (now out of print) and Alison Prince?s more recent work can be recommended.

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resume mart This is Java Projects on Online Resume Mart, which provided a lot of facility to their user. The objective and scope of America Pageant Essays my Project Online Resume Mart is to record the details various activities of user. It will simplifies the task and reduse the paper work. Misconceptions About. During implementation every user will be given appropriate training to suit their specific needs. Specific support will also be provided at key points within the academic calendar. America Pageant Essays. Training will be provided on a timely basis, and you will be trained as the new is Online Resume Mart rolled out to your area of responsibility. At the moment we are in Essay They the very early stages, so it is of Miss America Pageant Essays difficult to put a specific time on the training, but we will keep people informed as plans are developed.The system is almost very user friendly and it is anticipated that functions of the system will be easily accessed by administrators, academics, students and applicants.

Hence the management system for the College management has been designed to Values, remove all the deficiency from which the present system is suffering and to a man a man, ensure. The client uses MS Excel, and maintains their records, however it is not possible them to share the data from multiple system in multi user environment, there is lot of duplicate work, and Values Essays, chance of mistake. When the records are changed they need to update each and of john adams, every excel file. There is no option to find and America, print previous saved records. There is of john adams no security; any body can access any report and sensitive data, also no reports to summary report. This Online Resume Mart is used to overcome the Values Essays, entire problem which they are facing currently, and making complete atomization of manual system to computerized system. The main limitation of the previous system of Online Resume Mart: The existing system only provides text-based interface, which is not as user-friendly as Graphical user Interface. Since the system is implemented in Manual, so the response is very slow. The transactions are executed in off-line mode, hence on-line data capture and modification is not possible.

Off-line reports cannot be generated due to batch mode execution. Hence, there is a need of reformation of the system with more advantages and flexibility. The Online Resume Mart eliminates most of the limitations of the existing software. It has the following objectives: The main objective of Online Resume Mart is to enhance and upgrade the existing system by increasing its efficiency and effectiveness. Revolution. The software improves the working methods by replacing the existing manual system with the computer-based system. The Online Resume Mart automates each and every activity of the Values of Miss, manual system and increases its throughput. Thus the response time of the system is very less and it works very fast.

The Online Resume Mart provides the uses a quick response with very accurate information regarding the users etc. Any details or system in an accurate manner, as and when required. The software Online Resume Mart has a very user-friendly interface. Lack Of Morals. Thus the of Miss Pageant Essays, users will feel very easy to work on it. The software provides accuracy along with a pleasant interface.Make the present manual system more interactive, speedy and user friendly. The transaction reports of the About, system can be retried as and when required. Thus, there is no delay in the availability of any information, whatever needed, can be captured very quickly and easily. Reduce the Values America Pageant Essays, cost of maintenance. PROJECT CATEGORY: Relational Database Management System (RDBMS) The project is entitled Online Resume Mart,category RDBMS. Hence before discussing any thing about the project Online Resume Mart, a brief disscussion of related basic concept is necessary.

As a software developer or as a programmer,we are expected to design and develope any program that works correctly, efficiently and the time is easy to be used by every person, who may or may not be well versed wiht computer and its capabilities. The Project is based on the Online Resume Mart, Being the Information System it requires extensive use of some Data base Management System to Essay on Use of Tobacco They Body, store, manipulate and Pageant, handle the About Parents Essay, huge and complex record, In RDBMS we can act various attributes with the database like editing the records, Modifications Deletions of the records, View the Values Essays, records in various formats, listing the database etc. On Use Of Tobacco Products They Body. Project can be categorized by their functioning and relation with their database and other tools can categorize project. Since this project has been developed based on Values America Pageant the Relation Data Base Management System So Proposed system comes under RDBMS (Relational Database Management System) category, as there is need to store and manipulate a huge amount of exposition address summary data related to of Miss, patients as per various queries. The systems objectives outlined during the feasibility study serve as the almost, basic from which the work of system design is initiated. Much of the Values of Miss America Essays, activities involved at this stage is of technical nature requiring a certain degree of experience in designing systems, sound knowledge of computer related technology and through understanding of computers available in the market and the various facilities provided by the vendors. Misconceptions About Working Essay. Nevertheless, a system cannot be designed in isolation without the active involvement of the Values of Miss America Pageant Essays, user. The user has a vital role to play at this stage too.

As we know that data collected during feasibility study wills we utilized systematically during the system design. It should, however be kept in mind that detailed study of the existing system is not necessarily over with the completion of the feasibility study. Depending on the plan of feasibility study, the level of glorious revolution detailed study will vary and Values of Miss Pageant Essays, the system design stage will also vary in the amount of investigation that still needs to be done. This investigation is almost a man generally an urgent activity during the system. Sometimes, but rarely, this investigation may form a separate stage between feasibility study and computer system design. Designing a new system is a creative process, which calls for logical as will as lateral thinking. The logical approach involves systematic moves towards the end product keeping in mind the capabilities of the personnel and the equipment at each decision making step. Of Miss Pageant Essays. Lateral thought implies encompassing of ideas beyond the usual functions and equipment. This is to ensure that no efforts are being made to fit previous solutions into new situations. The system design process is not a step-by-step adherence of clear procedures and guidelines.

Though, certain clear procedures and revolution summary, guidelines have emerged in recent days,But still much of design work depends on knowledge and of Miss Pageant, experience of the designer.When designer starts working on system design, he will face different type of problems. Many of on Use of Tobacco Products and How the Human these will be due to constraints imposed by the user or limitations of the hardware and software available in the market. Sometimes, it is difficult to enumerate the complexity of the problems and of Miss Essays, solutions there of since the variety of likely problems is so great and no solutions are exactly similar. However, following considerations should be kept in mind during the system designing phase: The primary objective of the design of course, is to deliver the requirements as specified in the feasibility reports. In general the following design objectives should be kept in mind. The system must be stable and can be operated by people with average. This involves accuracy, timeliness and comprehensiveness to the system output.

It is of john desirable to aim for a system with a minimum cost subject to the condition that it must satisfy all the America Pageant Essays, requirements. The system should be modifiable depending on the changing needs of the user. Such modifications should not entail extensive reconstructing or recreation of software. It should also be portable to accomplishments of john, different computer systems. This is very important aspect of the design and America Pageant Essays, should cover areas of hardware reliability, fall back procedures, physical security of data and provision for detection of fraud and abuse. System design involves first logical design and then physical construction of the of Tobacco Products They Affect the Human Body, system. The logical design describes the Values of Miss, structure and characteristics of features, like the outputs, inputs, files, database and procedures. The physical construction, which follows the logical design, produces actual program software, files and a working system. Several development activities are carried out during structured design. They are database design, implementation planning, system test preparation, system interface specification, and user documentation. This activity deals with the design of the physical database.

A key is to determine how the access paths art to be implemented. Program design: In conjunction with database design is lack of morals a decision on the programming language to be used and the flowcharting, coding, and of Miss America Pageant Essays, debugging procedure prior to conversion. The operating system limits the programming languages that will run of the system. System and address, program test preparation. Values America Essays. Each aspect of the system has a separate test requirement. System testing is done after all programming and atlanta summary, testing completed the of Miss, test on of john adams system and program test requirements become a part of design specifications a prerequisite to implementation.

In contrast to the system testing is acceptance testing, which puts the of Miss, system through a procedure design to convince the user that the proposed system will meet the stated requirements. Acceptance testing is technically similar to system testing but politically it is different. The computer system design process is an exercise of specifying how, the system will work. It is an iterative process, which is based on what the system will be do as shown in the feasibility report.Mainly, following five parts have been included in the system design process. The starting point of the design process is the proper knowledge of system requirements which will normally be converted in terms of output. Once the output requirements have been finalized, the almost a man, next step is to find out what data need to be made available to the system to produce the of Miss America Pageant Essays, desired outputs.

The basic documents in which these data are available need to be identified. If necessary, these documents may have to be revised or new documents may have to be introduced. Once the input data is captured in the system, these may to be preserved either for a short or long period. These data will generally be stored in files in a logical manner. A Man. The designer will have to devise the techniques of storing and retrieving data from these files. This step involves specifications of how processing will be performed. In this, there are two aspects: The computer procedure will specify what functions will be carried out on computer, what will be different programs and in what sequence the of Miss, programs will be run.

The non-computer procedure will specify the manual procedures for feeding input data, receiving outputs etc. The control design indicates necessary procedures which will ensure correctness of atlanta address summary processing, accuracy of data, timely output etc. this will ensure that the system is functioning as per plan. Development and Deployment Design. Major responsibilities include system Requirement Study, Preparing System Design Document, Preparing the Values of Miss Pageant Essays, Program (Form) Specs, Peer Review of the Specs, Implement Quality procedures as per of john adams, the QMS Document, Documentation of Values America Pageant Essays SRS Revalidation #038; Design Documents, thorough grasping of the user functionality and applying, approving the Essay of Tobacco Products and How They the Human Body, same in the project, Developing, Testing #038; Debugging of Forms, User Training and Implementation of the module. Once the analysis and Values America Pageant, design of the exposition address summary, system has been done, it would be necessary to Values of Miss, identify the data that are required to be processed to produce the outputs.

Input is one of the most expensive phases of the operation of a computerized system and creates sometimes a major problem. Different type of problem with a system can usually be traced back to faulty input design method needless to say, therefore, that the input data are the lifeblood of a system and have to be analyzed and designed with utmost care and consideration. Input design features can ensure the Misconceptions, reliability of the system and generate correct reports form the of Miss America Essays, accurate data. Essay On Use Of Tobacco Products And How The Human. The input design also determines whether the user can interact efficiently with the system. Inaccurate input data are the most common cause of errors in data processing.

Errors entered by data entry operators can be controlled by input design. Input data are collected and organized into groups of similar data. Once identified, appropriate input media are selected for processing. The goal of designing input data is to make data entry as easy, logical and error free from errors as possible. In entering data, operators need to know the following: The allocated space for each field.

Field sequence, which much match that in Values Pageant the source document. The format in Misconceptions Working which data fields are entered for example, filling out the of Miss, date field is atlanta exposition address required through the edited format mm/dd/yy. When we approach input data design, we design the source document. Let us elaborate on each step. Source data are captured initially on original paper or a source document. America. For example, a cheque written against an account is a source document.

When it reaches the glorious revolution summary, bank, it is encoded with special magnetic ink character recognition so that a reader that is part of the information system of the bank can process it. Therefore, source documents initiate a processing cycle as soon as they are entered into the system. Source documents may be entered into the system from punch cards, from diskettes, or even directly through the keyboard. A source document should be logical and easy to understand. Each area in the form should be clearly identified and should specify for the user what to America Pageant, write and address summary, where to write it.A source document may or may not be retained in the proposed system. Thus, each source document may be evaluated in terms of.Its continued use in the proposed system,The extent of modification for the proposed system #038; Replacement by Values of Miss America Pageant Essays, an alternative source document. The design of input play very significant role in getting the correct output.

It covers al phases of input from creation of initial data (original recording) to actual entering the data to the system for processing. The input design is the link that ties the information system into the world of its users. Some features of design may vary depending on whether the lack of morals, system is batch-oriented or on-line. Here, we will discuss the various objectives of input design. They focus on: Controlling amount of input Avoiding delay Avoiding errors in data Avoiding extra steps Keeping the Values of Miss America Essays, process simple. Each of the atlanta exposition address, five objectives of input design is briefly discussed below: An effective design controls the quantity of data for Values America Pageant input for the following reasons: Firstly, data preparation and data entry operations depend on people.

Since labor costs are high, the cost or preparing and Essay on Use of Tobacco and How Affect the Human, entering data is America Pageant Essays also high. On Use Affect The Human. It is quite evident, then that reducing data requirements mean lowering costs through reduced labor expense. Secondly, the input phase of computing can be slow process and take many times longer than that needed by computers to carry out their tasks. In fact, the computer itself may sit idle until data is prepared and input for processing. By reducing input requirements, the analyst will speed the entire process from data capture to processing to provide result to users. When processing is delayed owing to data preparation or data entry, the cause is called a bottleneck. Avoid bottlenecks when designing input should always be one of the objectives of the Values America Pageant Essays, analyst. The third objective deals with errors. In one sense, the rate at Essay on Use and How Affect the Human, which errors occur is dependent on the quantity of Values America Pageant data. Since the lower the amount of data is of john inputted, there are fewer opportunities for Pageant Essays the error to occur. Firstly, the analyst can reduce this number by reducing the volume of data dust must be entered for each transaction.

Secondly, the analyst can also affect error rates of an operation through design. The manner in which data must be entered can reduce the chance of errors. Still, a third aspect of error control is the need to lack of morals, detect errors when they do occur. Checks and balances in the data entry programs, called input validation techniques, also detect errors input. Presenting the data processed by a computer-based information system in an attractive and Values Pageant Essays, usable form has become very essential these days success and acceptance of Misconceptions About Parents a system to some extent depends on good presentation. Therefore, system analyst must know fully how to design output report in an attractive way. Many new output devices are being introduced in the market because of recent development in Values of Miss America computer technology. System analyst must be aware of these new technologies and try to use these new output devices if possible.

Currently, excellent graphic displays are widely available. Speech output systems are also fast emerging. There are three main reasons why outputs from the computer are required. They are: For communication to the persons concerned. For re-input to the computer for being connected with other data and further processing.

For permanent storage. Outputs of a system can take different forms. The most common are reports, displays on atlanta exposition screen, printed forms etc. the outputs also vary in terms of their contents, type of stationery. Frequency and timing etc. besides, due consideration also need to be given as to of Miss America Pageant Essays, who will use the output and for what purpose. All these points must be kept in mind while designing outputs so that the objectives of the system are met in About Working the best possible way. Outputs of a data-processing system can be placed into two categories: These are the outputs desired out of the system to meet its objectives. These are of three types:

Output as a basis for decision-making. This type of output is generally required by management for decision-making purposes. Output as a requirement to meet a functional objective. Invoices, Excise Gate Pass, Purchase Orders are the examples of such output. Values Pageant. Statutory outputs: All organization is required to produce a certain amount of reports and forms as required by law.

These outputs are mainly generated for of john adams use of EDP staff and give various indications as to of Miss America, how the system operates. System logs, error messages, status indicators etc. are the examples of such output. These types of output are not concerned for the users. It may help collecting perfect management in details. In a very short time, the collection will be obvious, simple and sensible. It will help a person to know the management of passed year perfectly and vividly. Essay Of Tobacco Products And How Body. It also helps in current all works relative to College. It will be also reduced the cost of Essays collecting the management #038; collection procedure will go on smoothly. The present project has been developed to meet the aspirations indicated in the modern age. An attempt has been made through this project to do all work ease #038; fast. It provide current add, Update, MoveNext, MovePrevious, MoveLast, Find #038; Delete all facilities to accomplish the desired objectives.

The facility Include in this project and summary, the suggested activities have been organized to impart knowledge #038; develop skill #038; attitude in the College official works.

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2girls1cup essay Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to Values America Pageant, loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of summary 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 Pageant, operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater. If a driver is under the age of 21, he or she is prohibited from driving if his or her BAC is Parents higher than .02%. Any driver in of Miss America Pageant 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 glorious, contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in court. Judges, prosecutors, and America Pageant law enforcement authorities have no tolerance for people who drive under the Misconceptions About, influence, and always prosecute those people in court.

There are defenses to a Massachusetts DUI and of Miss Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in lack of morals the arresting officer#8217;s subjective conclusions regarding your coordination and America Essays stability, and the inaccuracy of breathalyzer machines. Misconceptions Parents Essay! Field sobriety tests, for example, are not reliable indicators of Values America Pageant intoxication. Especially when asked to perform them at night, on the shoulder of the road, in Essay on Use of Tobacco Products and How Affect 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 every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program.

The case is dismissed after mandatory alcohol education classes and one year of probation and, and Values of Miss America 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 man who was a man a 60-day suspended sentence, two-year license revocation with no hardship license for America 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. 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. Summary! It is America Pageant similar to, but not technically a guilty plea. (More info on adams, a CWOF.) Pay a number of fines and of Miss America Essays court fees (over $2500 in total), as well as take a hit to your insurance. Unsupervised probation for one year. Mandatory participation in a man a man 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. Of Miss America Pageant! License suspended for 45 to 90 days (not including any penalty for breath test refusal) License suspension is 210 days for drivers under age 21. You are eligible for a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties: The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances.

In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law Second Offense Penalty. Revolution Summary! Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. License suspended for 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won#8217;t be eligible for a hardship or full license restoration for at America Pageant 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. Revolution! As of January 1, 2006 Interlock device installed in your car at your own expense for 2 years as a condition of any license reinstatement (including hardship license). If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only be the penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on Values Pageant, 2nd Offense OUI Penalties: See my second offense OUI penalties page for detail on Misconceptions Essay, the implications of a 2nd offense drunk driving defense. I can almost always negotiate for the Alternative Disposition above for any second offense OUI conviction, but it is still a tough punishment to accept for America Essays many people. Given that there isn#8217;t that much risk of a man who was 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 this point, and America there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is a good reason to strongly consider fighting the case. Massachusetts OUI/DWI Law Third Offense Penalty(3rd) Penalty. Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) May be served in About Working Parents Essay a prison treatment program. License suspended for 8 years, work/education hardship considered in 2 years; general hardship in 4 years. Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 3rd Offense OUI Penalties: For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. For a 3rd offense charge, this is a good reason to fight the case and look for a chance to win and avoid jail time. It usually only makes sense to work out Values of Miss Essays, 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 exposition 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 of Miss Essays 5 years; general hardship in 8 years. Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Even a small chance of winning the case is worth the risk, since it is probably your only Essay Products and How Affect chance to avoid jail time.

You need to consider fighting your case at trial in almost all cases. MASSACHUSETTS OUI/DUI LAWS FIFTH OFFENSE (5th) Penalty. 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. Values Of Miss! 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 summary injured, you are almost certain to of Miss, 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 accomplishments 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 which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of Values America alcohol in of Tobacco Body their blood of Values America Pageant Essays eight one-hundredths or greater, or while under the lack of morals, influence of Values of Miss America Pageant Essays 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 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 $250 against a person who is address convicted of, is placed on probation for, or is granted a continuance without a finding for or otherwise pleads guilty to or admits to of Miss Pageant, 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 of john 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 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 Values of Miss Pageant Essays, or admits to lack of morals, a finding of sufficient facts for operating a motor vehicle while under the influence of America intoxicating liquor or under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. If a person against whom a fine is glorious revolution summary assessed is sentenced to a correctional facility and the assessment has not been paid, the court shall note the assessment on the mittimus. Values Pageant Essays! 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 of john adams, time, into the Victims of Drunk Driving Trust Fund established in of Miss America Essays section 66 of chapter 10. 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 the Victims of Drunk Driving Trust Fund pursuant to this section shall be in addition to, and atlanta exposition address not in lieu of, any other fee imposed by the court pursuant to this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of Values of Miss funds imposed and collected pursuant to atlanta exposition address summary, this section to the house and senate committees on ways and means and to Values America, the victim and witness assistance board not later than August 15 of each calendar year.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to lack of morals, less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from Pageant Essays his sentence for good conduct until such person has served thirty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in 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 Working Essay 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 Values of Miss America Essays, 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 provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. Who Was Almost! If the defendant has been previously convicted or assigned to America Pageant, 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 accomplishments a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and Values Pageant Essays eighty days nor more than two and one-half years or by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon Essay on Use Affect the Human 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 Values of Miss America Pageant Essays, commissioner of Misconceptions Working Parents correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of Values America Essays 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 almost, 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 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 Values Pageant provided, further, that the defendant may serve all or part of such one hundred and a man fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of of Miss America Pageant 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 of Tobacco a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the of Miss Essays, commission of the offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and one-half years, or by glorious a fine of of Miss Pageant not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for adams not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon Values America Pageant Essays such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for About Essay probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the of Miss America Pageant Essays, 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 lack of morals, attend the funeral of a relative; to visit a critically ill relative; to Values, obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an lack of morals alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the America Essays, 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 on Use Products and How They Affect 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 Essays a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the lack of morals, defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for Values of Miss not less than two and one-half years nor more than five years; provided, however, that the lack of morals, 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 commissioner of correction may, on of Miss Essays, the recommendation of the warden, superintendent, or other person in charge of accomplishments adams 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 Values of Miss America Essays, engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an lack of morals 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 the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the provisions of 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 a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to another division of the America, district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant#8217;s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the defendant#8217;s arraignment.

The commissioner of probation shall give priority to requests for lack of morals such records. At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the America Pageant Essays, prosecutor may apply for glorious the issuance of a new complaint pursuant to Values of Miss Essays, section thirty-five A of chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations. If such application is About Working Essay made, upon motion of the prosecutor, the Values of Miss America Essays, court shall stay further proceedings on the original complaint pending the determination of the application for Essay Products Affect the Human Body 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 Values of Miss America Essays 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 Working Parents Essay said complaint.

(2) Except as provided in Values Essays subparagraph (4) the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of accomplishments adams 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 America Essays a like offense by a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the provisions of section six A of chapter two hundred and Essay on Use of Tobacco They Affect the Human 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 provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the of Miss, offense for which he has been convicted. (4) Notwithstanding the provisions of lack of morals 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 of Miss America who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the date of the commission of the offense for which he has been convicted, shall receive a report from the probation department of a copy of the About Working Parents Essay, defendant#8217;s driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendant#8217;s use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from of Miss America Pageant such treatment and atlanta address that the safety of the public would not be endangered, with the defendant#8217;s consent place a defendant on probation for two years; provided, however, that a condition for Pageant Essays such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to Working Essay, be promulgated by said division in Values Pageant consultation with the department of correction and with the approval of the atlanta exposition summary, secretary of 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 the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Values Pageant! 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 any other terms of probation as imposed under this section shall be reported forthwith to the court and a man a man 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 America Pageant Essays, 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 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 furlough or receive any reduction from revolution his sentence for good conduct until such person has served two days of such sentence; and provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in of Miss America Pageant charge of a correctional institution, or of the Essay on Use Products They Affect Body, administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in Values Pageant the custody of an officer of such institution for the following purposes only: to attend the accomplishments of john adams, funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to Values of Miss Essays, a work release program. If such defendant fails to attend or complete the residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the summary, defendant to imprisonment for not less than thirty days as provided in subparagraph (1) for such a defendant. Of Miss! The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and provided, further, that such person files with the court, an glorious revolution affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of of Miss America such fee would cause a grave and serious hardship to such individual or to the family of such individual, and Misconceptions About that the court enters a written finding thereof.

In lieu of waiver of the entire amount of said fee, the America Pageant Essays, court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to revolution summary, 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 Pageant Essays a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the adams, commission of the offense for which he has been convicted, and of Miss America said person qualifies for disposition under section twenty-four D and has consented to glorious revolution, probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to Values of Miss, stay the revocation of the license or the right to operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the lack of morals, same to the registrar. The court shall report immediately any revocation, under this section, of Values America Pageant a license or right to operate to the registrar and to the police department of the municipality in which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of lack of morals a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and Values twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and glorious such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of of Miss America Pageant Essays 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 operate to such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the date of conviction; provided, however, that such person may, after the expiration of three months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of Essay of Tobacco and How Affect Body a new license for employment or educational purposes, which license shall be effective for Values America Pageant Essays 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 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 a man who was a man, date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the of Miss America Essays, causes of the present and past violations have been dealt with or brought under control and Misconceptions Working Essay 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 America Pageant, 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 accomplishments of john 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 Values Pageant, license or reinstate the right to operate of Misconceptions Working such person unless the prosecution of such person has been terminated in favor of the defendant, until two years after the Values of Miss, 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 who was almost a man the purpose of requesting the issuance of Values of Miss Pageant Essays a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the lack of morals, present and past violations have been dealt with or brought under control and Values of Miss America Pageant that such person shall have successfully completed the residential treatment program in subparagraph (4) of of john adams 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 Essays, registrar for the purpose of requesting the issuance of a new license on a limited basis on atlanta, the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in Values of Miss Pageant Essays his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (3) Where the license or right to operate of Essay Products Affect Body 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 of Miss Essays a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the address summary, crime for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to a violation of of Miss America Pageant said section due to a man a man, a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the Values of Miss Essays, registrar shall not restore the license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the accomplishments of john, date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on the grounds of hardship and America Essays a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the on Use of Tobacco Products They Affect the Human, expiration of four years from the Values Essays, date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of glorious revolution 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. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (31/2) Where the America Essays, license or the Misconceptions About Parents, right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of Values America or assigned to of john, an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of America Pageant Essays a like violation three times preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the Essay They the Human, 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 Values of Miss America employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of hardship and on Use of Tobacco Products They Affect Body a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of Values of Miss America Pageant Essays requesting the of john, issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and Values Pageant 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 a man who was almost a man conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on of Miss Essays, each vehicle owned, each vehicle leased and each vehicle operated by a man almost the licensee for the duration of the hardship license. (33/4) Where the license or the Values of Miss Pageant Essays, 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 atlanta summary, commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the commission of the offense for which such person has been convicted, such person#8217;s license or right to operate a motor vehicle shall be revoked for the life of such person, and such person shall not be granted a hearing before the registrar for Essays the purpose of requesting the issuance of glorious revolution a new license on Pageant, a limited basis on the grounds of hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in accordance with the provisions of Essay of Tobacco Products Affect the Human chapter thirty A, from any order of the registrar of motor vehicles under the provisions of this section. Values America! (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by Parents either certified attested copies of original court papers, or certified attested copies of the defendant#8217;s biographical and America Pageant informational data from records of the department of probation, any jail or house of corrections, the department of glorious correction, or the registry, shall be prima facie evidence that the Values of Miss America, 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 who was a man, introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of subdivision (1) of Values of Miss America Pageant Essays this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of a prosecution upon appeal or otherwise after such a conviction.

Where there has been more than one conviction in the same prosecution, the date of the first conviction shall be deemed to be the date of exposition summary conviction under paragraph (c) hereof. (e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant#8217;s blood at the time of the alleged offense, as shown by Values of Miss Pageant chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at About Working such time under the Values of Miss America Pageant, 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 defendant, the lack of morals, results thereof were made available to him upon of Miss Pageant 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 a man who was almost him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in of Miss Pageant Essays 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 of Tobacco They Affect Body, officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the of Miss Essays, person arrested had been operating a motor vehicle upon any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is under the age of twenty-one and such evidence is that the percentage, by weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater, the 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 a chemist of the department of the a man almost a man, state police or by a chemist of Values America a laboratory certified by the department of public health, which contains the results of an on Use Products and How They the Human analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for 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 Values of Miss, a medical facility licensed under the provisions of section 51 of Essay on Use Products and How Affect the Human Body chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at Values Pageant the direction of a police officer, as defined in 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 accomplishments adams, influence of intoxicating liquor. Essays! If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for such refusal, no such test or analysis shall be made and he shall have his license or right to About Parents, operate suspended in accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the age of Values 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of a man who was chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for a period of Values of Miss 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 Essay of Tobacco Products Affect such refusal. Values Of Miss America Essays! If a person refuses to submit to any such test or analysis after having been convicted of a violation of revolution summary section 24L, the Values of Miss Essays, restistrar shall suspend his license or right to operate for 10 years. If a person refuses to exposition summary, 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 eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the Values Essays, registrar shall revoke his license or right to operate for life. If a person refuses to take a test under this paragraph, the Essay on Use of Tobacco Affect, police officer shall: (i) immediately, on behalf of the of Miss America Essays, registrar, take custody of such person#8217;s license or right to Products and How They Body, 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 a period of 12 hours after the operator#8217;s refusal, with the costs for the towing, storage and maintenance of the of Miss Pageant, vehicle to glorious summary, be borne by Values of Miss America Pageant Essays the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of of john such refusal.

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 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 America, 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 adams, do so, such refusal having been witnessed by another person other than the defendant. Each report shall identify the Values of Miss, police officer who requested the summary, chemical test or analysis and the other person witnessing the refusal. Of Miss Pageant Essays! 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 which has been confiscated pursuant to 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. 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 About Parents, any additional suspension periods arising from the same incident, and Values America 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 a man who was almost a man 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 commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. Pageant Essays! In all such instances, the Parents Essay, court shall issue written findings of fact with its decision. Of Miss America! (2) If a person#8217;s blood alcohol percentage is on Use Products and How They Affect not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on behalf of the registrar take custody of such person#8217;s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the registrar, a written notification of America Essays suspension, in a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Revolution Summary! 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 Values America Pageant, grounds for 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 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 summary certified in the administration of the Values of Miss Pageant Essays, test or analysis, that the a man a man, test was performed in accordance with the Values America Pageant Essays, regulations and standards promulgated by the secretary of public safety, that the equipment used for About Working Essay the test was regularly serviced and maintained and that the person administering the test had every reason to believe the equipment was functioning properly at the time the test was administered. Each report shall be sent forthwith to 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 Values America, operate confiscated under this clause shall be forwarded to revolution, the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to suspend from a police officer. Of Miss America Pageant Essays! The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is revolution summary under the age of twenty-one years and such evidence is of Miss America that the percentage, by a man who was a man weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater and upon Values of Miss the failure of lack of morals any police officer pursuant to this subparagraph, to suspend or take custody of the driver#8217;s license or permit issued by the commonwealth, and, in America Pageant the absence of a complaint alleging a violation of Misconceptions About Parents Essay paragraph (a) of Values America Pageant Essays subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant#8217;s license or right to operate a motor vehicle upon receipt of a report from the atlanta address, 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 Values of Miss America Pageant Essays the registrar and 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 a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at Essay on Use Products Affect Body the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the Values America Essays, test or analysis was trained and certified in lack of morals the administration of such test, that the test was performed in accordance with the Pageant, regulations and standards promulgated by a man who was almost a man the secretary of public safety, that the equipment used for such test was regularly serviced and maintained, and Values of Miss that the person administering the test had every reason to believe that the accomplishments adams, equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and shall be sent to the registrar along with the confiscated license or permit not later than ten days from the Values America Essays, 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 a man a man paragraph (f) shall, within fifteen days of Values of Miss America Essays suspension, be entitled to a man who was, a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to America Pageant Essays, believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in of Tobacco Products and How Affect Body any place to which members of the public have a right of access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to such test or analysis.

If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the issuance of the Values of Miss America Pageant, final determination by Misconceptions About Essay the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the of Miss, right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of accomplishments of john 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 Values, submission thereof. Review by the court shall be on the record established at the hearing before the registrar. Adams! If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in Values America Pageant 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 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 Misconceptions Working Parents Essay, a hearing before the court in which the underlying charges are pending or if the Values of Miss America Pageant, individual is atlanta exposition address 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 Values of Miss America Pageant, 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 age of twenty-one was less than two one-hundredths. A Man Who Was Almost! 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 court shall restore such person#8217;s license, permit or right to Essays, operate and shall direct the prosecuting officer to forthwith notify the criminal history systems board and Misconceptions Working Essay the registrar of such restoration.

[ Second paragraph of paragraph (g) of 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 the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the Values of Miss Essays, court in Essay on Use Products Affect Body which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in of Miss America Pageant 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 revolution summary, such person under the age of twenty-one was less than two one-hundredths. Pageant! 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 court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of Misconceptions Working Essay such restoration. (h) Any person convicted of a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the of Miss Pageant Essays, influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, may, as part of the accomplishments of john adams, disposition in the case, be ordered to Values of Miss Pageant Essays, participate in Parents 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 Essays other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of a man 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 of Miss Essays, which members of the glorious revolution, public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the Values America, lives or safety of the glorious summary, public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for Values Pageant Essays the purpose of lack of morals 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 Essays 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, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by lack of morals imprisonment for America Essays not less than thirty days nor more than two years, or both, and for glorious revolution summary a second offense by imprisonment in the state prison for not more than five years or in a house of of Miss Essays 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 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 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 a man imprisonment. A summons may be issued instead of a warrant for arrest upon Values of Miss Essays a complaint for a violation of any provision of on Use Products They Affect the Human Body this paragraph if in the judgment of the Pageant, court or justice receiving the complaint there is reason to glorious revolution, 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 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 America Essays 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 Misconceptions About Parents 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 of Miss America, 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 violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to lack of morals, any other person, vehicle or property by operating said motor vehicle negligently so that the Values of Miss Essays, lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by address imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in Values of Miss Essays a house of atlanta exposition address summary 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 a third or subsequent offense of Values of Miss such use without authority committed within five years of the earliest of About Parents Essay 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 Values of Miss Pageant Essays not less than six months nor more than two and one half years in a house of correction or for Misconceptions Parents Essay not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the Values of Miss America Pageant Essays, defendant will appear upon a summons.

There shall be an assessment of $250 against a person who, by a court of the almost, commonwealth, is convicted of, is placed on probation for or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the Values of Miss America Pageant, $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in on Use Products They Affect 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 of Miss America any way or in any place to which the public has right of access, or upon any way or in any place to summary, which members of the public shall have access as invitees or licensees, and without stopping and of Miss Essays making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished by 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 revolution summary, which the public has a right of access or upon Values America any way or in any place to which members of the public shall have access as invitees or licensees and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of a person, be punished by address imprisonment in the state prison for not less than two and one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for not less than one year nor more than two and of Miss Pageant Essays one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of such sentence; provided, however, that the commissioner of glorious revolution summary correction may on Values Pageant Essays, the recommendation of the Essay Products and How Body, warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in Values America Pageant Essays the custody of an atlanta officer of such institution for the following purposes only: to attend the funeral of Values America a relative; to visit a critically ill relative; to summary, obtain emergency medical or psychiatric services unavailable at said institution or to engage in employment pursuant to a work release program. Values Pageant! (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 who was almost a man 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 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 the records of the registrar that the person so convicted is the Values America Essays, owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the a man, certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the defendant. In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the Values of Miss America Pageant Essays, right to operate to lack of morals, a person convicted in any court for a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to Values America Pageant Essays, operate shall be issued by the registrar to: (i) any person convicted of a violation of subparagraph (1) of paragraph (a1/2) until one year after the date of revocation following his conviction if for a first offense, or until two years after the 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 lack of morals, 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 Values unauthorized, until one year after the date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and atlanta address (iv) any person convicted of Values of Miss any other provision of paragraph (a) until sixty days after the date of his original conviction if for exposition a first offense or one year after the date of revocation following any subsequent conviction within a period of three years. Notwithstanding the forgoing, a person holding a junior operator#8217;s license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the America Pageant, date of his original conviction for atlanta exposition summary a first offense or 1 year after the 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 any way or in Essays any place to which the public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the address summary, lives or safety of the public might be endangered. The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and nineteen. Values Of Miss Pageant! (3) The prosecution of lack of morals any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of of Miss justice require such disposition, be placed on file or otherwise disposed of except by trial, judgment and sentence according to Misconceptions Working Parents Essay, the regular course of criminal proceedings; and Essays 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 address justice require the allowance of the America, 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 lack of morals the court or magistrate forthwith to the registrar. Pageant Essays! (4) In any prosecution commenced pursuant to a man a man, this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by of Miss Pageant Essays either original court papers or certified attested copy of Essay Products They original court papers, accompanied by of Miss Essays a certified attested copy of the Misconceptions About, biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the commonwealth one or more times preceding the Values of Miss America, date of commission of the almost, offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on America, charges of felony motor vehicle homicide, operating under the influence, and operating to exposition, endanger. Superior Court of Massachusetts. Values Of Miss America Pageant! October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANT#8217;S MOTION FOR RELIEF UNDER MASS. R. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Before me is the defendant#8217;s motion, under Mass.

R. Crim. A Man! P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to of Miss Pageant Essays, the lesser included offense of misdemeanor vehicular homicide on ground of operating to endanger. For the reasons that follow, the defendant#8217;s motion is 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. It was the Commonwealth#8217;s theory of the case that the defendant, who had been prescribed a number of of john 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 Pageant Essays travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and a man almost 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 Essays, defendant operated her vehicle negligently or recklessly so that the Misconceptions Working Parents, lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the 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 Values America, Endanger. No third party witnessed the accident. Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. Essay Of Tobacco And How Body! Dobson, P.E., called by Essays the defendant. No lengthy review of lack of morals 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 crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant#8217;s lane of travel, and that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. Of Miss America! 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. Atlanta Address! B. Operating Under the Influence. Of Miss America Pageant! The #8220;operating under#8221; element of the accomplishments of john adams, OUI (G.L. c. 90, 24) and vehicular homicide (c.90, 24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle #8220;while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. 94C, 1], or the America, 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 glorious revolution, brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the #8220;scheduled medications#8221;). The first two are depressants; the last, a narcotic.3. Values Of Miss America Essays! There was no direct evidence as to when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to the #8220;operating under#8221; element was as follows.

1. CVS Pharmacy records. CVS Pharmacy records for glorious revolution the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for Values of Miss America Essays the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg.

15. Almost A Man! Date Dosage Quantity. Date Dosage Quantity. Values Pageant! Although there was evidence (see below) that the atlanta exposition address summary, 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 Values of Miss America Pageant Essays these medications, therefore, she would not have been #8220;operating under the influence#8221; within the meaning of these statutes, unless she was also impaired by one or more of the scheduled medications. Summary! 2. Testimony of Dr.

Abela. The CVS records further showed that the Values America Essays, oxycodone prescription which the defendant filled on August 29 was written by Dr. Andrew Abela. Dr. Lack Of Morals! Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Values America Pageant Emerson Hospital, she made an emergency visit to his office for tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at that time. His practice is to exposition, recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness. He further testified that patients who have had a tooth extracted sometimes experience #8220;dry socket#8221; three to America Essays, five days after the procedure, which can cause pain to flare up at that time.

Extraction of a lower tooth, and Misconceptions smoking following the procedure (the defendant is a smoker), both place the patient at increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the #8220;monographs#8221; that CVS, when filling a prescription, produces and staples to of Miss, 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 a man almost a man lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. #8230; SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision.

If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the of Miss Pageant Essays, 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. Tell your doctor immediately if you have any of a man almost a man 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. Of Miss Essays! 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and Misconceptions About Parents the three unscheduled medications are all prescribed in of Miss America Pageant Essays the management of various psychiatric conditions and/or insomnia. In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for Essay of Tobacco the jury), the defendant stated that she had undergone a miscarriage on America Essays, May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital#8217;s psychiatric unit from About Parents Essay then until the 29th).

She also stated that she had been having trouble sleeping, and that the night before the accident, she had gone to bed about 4:00 a.m., rising about of Miss America Essays, 9:00 a.m. The Commonwealth#8217;s medical expert (Dr. Brower) testified concerning the indications, action, and side effects of the medications the glorious revolution summary, defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is Values Pageant a narcotic analgesic, derived from the atlanta exposition, opium plant and used for moderate to severe pain. Values Of Miss America Pageant! Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. Diazepam (Valium) is an a benzodiazepine prescribed for revolution anxiety and Values of Miss Essays sometimes for insomnia. It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in atlanta exposition address therapeutic doses, include impairment and slowing down of mental and motor functions, and drowsiness. A single dose can affect the patient for up to 24 hours.

Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: Topomax is an Values of Miss Pageant Essays anti-seizure medication sometimes prescribed #8220;off label#8221; to control mood disorders. Side effects can include somnolence, fatigue, and of john adams blunted mental reactions. Effexor is an antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and of Miss America 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. Lack Of Morals! Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Both therapeutic and 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 effects of the three scheduled drugs. There could be other causes as well (and patients vary in the severity of their reactions to these and other drugs), but any or all of the scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and Essays (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the scheduled drugs. 5. Essay Products The Human! Defendant#8217;s Statements Concerning Medications. The plaintiff made various statements, shortly after the Values of Miss Essays, accident, concerning the medications she was taking. In chronological order: 1. Atlanta Summary! Ricardo Alcantara, who happened on the scene just after the accident and of Miss Pageant helped the plaintiff out of Misconceptions 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 of Miss Pageant Essays that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the EMT to About Working, whom Alcantara referred, testified (with the aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa.

3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendant#8217;s #8220;current medications,#8221; percocet and valium #8220;PRN#8221; (i.e., as needed). This was in response to the question he asks every patient,#8221; What medications are you currently taking?#8221; 4. In her September 2, 2001 and Values of Miss America Pageant Essays September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the atlanta address summary, accident. Of Miss America Essays! She stated that she had not driven, or been out of the who was almost, house, for two weeks prior to the accident (excepting her stay on a locked floor at Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed Effexor twice a day, Zyprexa once a day, and Values America 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 who was almost, house the day of the accident. She said that the packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to Pageant, the police. 6. Descriptions of the Defendant#8217;s Affect. Five witnesses testified as to the defendant#8217;s affect, as it bore on the question of possible impairment from of Tobacco Products the Human Body drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not #8220;grossly#8221; affected by drugs or alcohol.

2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and went to see if the defendant needed help. She assessed her for head injury, and noted that she appeared alert, not drowsy, able to of Miss America Pageant Essays, focus, oriented, unimpaired in speech, and able to follow the adams, directions of the EMTs. Values! 3. Steven Mickle, with the lack of morals, Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and of Miss able to follow instructions and to respond to who was, his questions. Of Miss Essays! 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and of john adams 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 Values of Miss America a blood or urine sample would have been uninformative).6. 5. On the Working Parents Essay, 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 of Miss Pageant there was#8221; nothing I could put my finger on,#8221; but he did notice that she was unusually subdued, not #8220;bubbly#8221; as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist. He went to the hospital where she was taken, where she said she had swerved to the right to Essay on Use Products and How They the Human, avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to America Pageant Essays, the left; she said she did not. 7. Erratic Driving.

There was also the evidence of the adams, defendant#8217;s erratic driving the day of the accident. As mentioned above, there was evidence from which the America Essays, jury could have concluded that the accident occurred when defendant#8217;s vehicle left her lane of travel and address summary swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to avoid the bicyclist. There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and Values of Miss Pageant two away. The defendant was coming from Essay on Use Products and How Affect the Human her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Values America Pageant Essays Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend#8217;s house on the way). George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at a high rate of speed in revolution summary the opposite (northbound) lane. As they and the truck approached one another at a curve in the road, the truck swerved into their lane and beyond, into the dirt by the (wrong) side of the Values of Miss America Pageant, road.

It did not slow down, and who was almost a man was in Essays their lane for several seconds before veering back into a man who was a man, the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to the police, the defendant stated that the only significant event on her drive from Ayer to Groton was that her sandal #8220;fell off once#8221; in the general area of the incident described by Krusen and Values America Essays 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 the request of the Groton police, viewed the Essay on Use and How They Affect the Human Body, 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 Values America Essays, same truck. The time, place, and descriptions of the They the Human Body, encounter were such that the jury would have been warranted in concluding that the driver was the defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for a directed finding at the close of the Commonwealth#8217;s case.

At that point, as required, I reviewed #8220;whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the of Miss America Pageant Essays, case to the #8230; jury, to decide the innocence or guilt of the accused.#8221; Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). Lack Of Morals! I determined that although the of Miss Pageant Essays, evidence that the defendant was under the influence of any of the scheduled medications at Essay of Tobacco and How They Affect the Human Body the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to the jury. Values Pageant Essays! The defendant has now renewed her motion, requiring me (a) to look again at whether the Commonwealth#8217;s case was sufficient, and (b) #8220;to determine whether the Commonwealth#8217;s position as to proof had deteriorated since it had closed its case.#8221; Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth.

Latimore, 378 Mass. at a man who was 677-78; Commonwealth v. Torres, 24 Mass. App. Of Miss America Pageant! Ct. 317, 323-24 (1987). Essay On Use Of Tobacco They Affect Body! #8220;[T]he critical inquiry on review of the Essays, sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the About Working Essay, jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. #8230; [The] question is whether after viewing the evidence in of Miss America Essays the light most favorable to Essay of Tobacco Products and How They Body, the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.#8221; Thus, to sustain the denial of a directed verdict, it is not enough #8230; to Values of Miss Essays, 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 a man a man each such element beyond a reasonable doubt. Of Miss America Pageant Essays! Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and Commonwealth v. Exposition Address! Doucette, 408 Mass.

454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge#8217;s review of motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino#8217;s testimony placed the Values America Pageant Essays, 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 road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to endanger. Lack Of Morals! See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (#8220;evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island#8221; was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of of Miss Pageant Essays vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is 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. Accomplishments Adams! See, e.g., Commonwealth v. Gordon, 389 Mass. 351, 358 (1983). The evidence concerning operating under the influence presented a closer case, but still one presentable to the jury. To succeed on Values America Essays, this element, the atlanta address summary, Commonwealth was required to prove beyond a reasonable doubt that one or more of the 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. Pageant! Connolly, 394 Mass.

169, 174 (1985). Essay Of Tobacco And How The Human Body! 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. Values America! #8220;It is enough if the defendant#8217;s capacity to operate a motor vehicle is diminished because of [a substance listed in lack of morals the statute], even though other, concurrent causes contribute to Values Pageant Essays, that diminished capacity.#8221; Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988). From the lack of morals, evidence summarized above, the jury could have concluded: 1. Values Of Miss America! That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. Adams! That her pattern of filling the prescriptions for diazepam and Values of Miss America Pageant (more especially) lorazepam indicated regular consumption; 3. About Parents Essay! 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 Values of Miss America Pageant, the night of August 31, from insomnia (an indication for lorazepam) indicated recent enough consumption to have affected her on lack of morals, September 1; 4. That lorazepam, even if consumed the night before, would still have affected her the day of the accident; 5. That the steadily diminishing list of medications given by the plaintiff following the accident and Pageant the omission of the three controlled medications in Misconceptions About Essay her statements to Values, the police indicated a consciousness of guilt, further bolstering the other circumstantial evidence of a man almost intoxication; 6. That the evidence of the defendant#8217;s erratic and dangerous driving, on two occasions11 separate but close in time and location, and the lack of any reasonable explanation for either, was evidence of impairment due to intoxication; 7. That the fact that the defendant was under the influence of Values of Miss America Pageant prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the lack of morals, witnesses who evaluated the defendant#8217;s affect after the Values of Miss Pageant, accident to lack of morals, 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 sedating effects of all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App.

Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to be impaired by them, and it lacked direct evidence of what concentrations she had of any of them.

Even the Values America Essays, direct evidence of lack of morals 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 Pageant lorazepam both recently and regularly; that she appreciated the atlanta address summary, dangers of the controlled medications, both medically and (by the time she spoke to the police) legally as well; and that her erratic and dangerous driving on the day of the Values Essays, 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. Accomplishments Of John! #8230; However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt. An inference drawn from circumstantial evidence #8220;need only be reasonable and Values America possible; it need not be necessary or inescapable.#8221; Moreover, the evidence and the permissible inferences therefrom need only be sufficient to Misconceptions About Working Essay, 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 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 of Miss, extent that conflicting inferences are possible from the of john, evidence, it is for Pageant the fact finder to resolve the conflict. Commonwealth v. A Man! Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of of Miss Criminal Procedure provides as follows:

Motion After Discharge of Jury. If the motion [for a required finding of not guilty] is accomplishments of john denied and the case is submitted to the jury, the Values Pageant, motion may be renewed within five days after the a man who was almost, jury is discharged and may include in the alternative a motion for a new trial. If a verdict of of Miss America Essays guilty is returned, the judge may on motion set aside the verdict and of john order a new trial, or order the entry of a finding of not guilty, or order the entry of Values of Miss America a finding of lack of morals guilty of any offense included in of Miss America Pageant Essays the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. c. 278, 11. Essay They Affect The Human! 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 review so-called capital cases convictions of murder in the first degree under G.L. c. 278, 33E. Values Pageant Essays! The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the Products and How Affect, evolution of legislative policy promoting judicial responsibility to ensure that the result in every criminal case is of Miss Pageant consonant with justice.

It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the jury#8217;s verdict. #8220;[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury#8217;s verdict.#8221; The judge#8217;s option to 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. About Working Parents Essay! 278, 33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge#8217;s own error, or #8230; the interaction of Values of Miss Pageant Essays 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 reduce a verdict is less constrained than when considering a motion to lack of morals, 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 rules, now must determine whether, under the special circumstances of this case, justice requires lowering the Pageant, level of guilt #8230;. The facts, as well as the law, are open to a man, consideration. Commonwealth v. America Essays! Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that #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 summary 667, citing Commonwealth v. Keough, 385 Mass. Values Essays! 314, 321 (1982) (trial judge #8220;should not sit as a `second jury#8217;#8221;); see also Commonwealth v. Accomplishments Of John Adams! 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 Values of Miss America Pageant, verdict-reduction power is lack of morals exercised most frequently as in Woodward to walk the #8220;fine line[s]#8221; between the forms of of Miss America Essays malice required for the various degrees of homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to Misconceptions, operating under and leaving intact the Values America Essays, finding as to accomplishments, operating to Values America Pageant, endanger): 1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in part, as an argument for #8220;involuntary intoxication#8221;). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the defendant characterizes it, #8220;slim,#8221; at summary 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 Values Pageant its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from physics and accident reconstruction.

If one accepts the conclusion of atlanta exposition address summary Trooper Alvino that the truck was on the sidewalk at the point of impact which the jury were not required but were entitled to do there might be a variety of Values Pageant Essays explanations for it, but the only one to be found anywhere in revolution the evidence is that of intoxication. If one also accepts the testimony of Values of Miss Krusen and Curcio (including the lack of morals, identification furnished by the latter) as the jury were also entitled to do this showed a chain of of Miss events of some duration, likewise consistent with intoxication and on Use of Tobacco and How They Affect begging alternative explanation in the evidence. Of Miss! A loose sandal might explain the Krusen-Curcio incident alone though even this is undercut by the defendant#8217;s disclaimer of any problem resulting from it but it does little to explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over 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 almost, conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the verdict-reduction power conferred by G.L. c. 278, 11 and Rule 25(b)(2) is most often exercised in of Miss America Essays order to navigate the murky and notoriously difficult, even on who was almost, a jurisprudential level world of human intent in homicide cases. Essays! These are cases in which the law, for reasons of social utility and fairness, requires a jury#8217;s pronouncement upon Essay and How the Human Body what many would argue is of Miss America Essays inherently unknowable. Some room for reflection and correction is atlanta address necessary, in all cases but especially in America Pageant these.

In this case, however, the Essay on Use of Tobacco They Affect, central issue whether or not the defendant#8217;s ability to perform a complex task such as driving was impaired by a controlled medication was an ascertainable fact. Its determination on the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to Values of Miss America Essays, suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in its quantity and its overall quality. Trial presentations for both sides were excellent. Who Was Almost A Man! I do not think the jury#8217;s verdict represented a miscarriage of justice. The defendant#8217;s final argument that medications taken as prescribed cannot be the America Pageant Essays, basis of an OUI or a vehicular homicide conviction misapprehends the glorious revolution, conduct which G.L. c. Values Of Miss Essays! 90, 24 and Misconceptions About Essay 24G make criminal. Her argument to 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 of Miss Essays, influence. What is forbidden is Misconceptions Working Parents 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. Pageant Essays! The OUI and address summary vehicular homicide statutes on their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the death of another person (for vehicular homicide).

Impairment by a prescription drug may be as dangerous as impairment by alcohol or a drug of America Essays abuse (which for some drugs is Misconceptions About Parents Essay precisely the Values of Miss Pageant Essays, reason a prescription is required). The statute aims to keep the impaired driver off the road in either case. While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed and will be addressed in this case in sentencing. For the foregoing reasons, the defendant#8217;s Motion for summary Relief Pursuant to Mass. R. Values Of Miss Pageant! Crim. P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for of Tobacco Products and How Affect the Human 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 Values Pageant Essays 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. The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. 54 (1994), of Trooper Alvino#8217;s testimony. It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to They Affect the Human Body, warrant admission of Trooper Alvino#8217;s testimony. Essays! 3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth#8217;s request, that these are #8220;depressants,#8221; because they appear on accomplishments of john adams, the attorney general#8217;s list of controlled substances, incorporated by reference into c. 94C, 1 and thereby into c. 90, 24(a) and of Miss America Pageant 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. Lack Of Morals! She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to of Miss, feel #8220;out of it#8221; and to sleep a lot, but that #8220;now they have no effect on me, and I#8217;m fine.#8221; In testimony that I excluded (after first asking if the summary, defendant wished to waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that #8220;the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday #8230; and he said it was fine.

He said they have no effect on America Pageant, your driving.#8221; 6. Dr. Balser and the police witnesses were in who was a man agreement that the decision whether or not to test for intoxication is a medical one, made by the physician and not under the direction of of Miss Pageant Essays law enforcement. 7. This description of the defendant#8217;s affect could be interpreted as at Essay of Tobacco and How Affect least generally consistent with the Values Pageant, 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 lack of morals, 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 Values America Essays indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to describe beyond a #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 the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and glorious revolution Curcio. 10.

At the defendant#8217;s request, and over the Commonwealth#8217;s energetically pressed objection, I gave the jury a #8220;specific unanimity#8221; instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant#8217;s ability to drive. #8220;[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the Values Essays, 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). Glorious! Here, there was evidence of ingestion of multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle. Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this.

11. The jury could reasonably have credited Curcio#8217;s identification of the Values of Miss, truck, and accomplishments of john adams attributed Krusen#8217;s failure to identify it to the fact that he had been the driver, and Values therefore, preoccupied. 12. The SJC noted in Woodward, #8220;Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.#8221; 427 Mass. at 667. Eight of these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to possession with intent to summary, distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. Values America Pageant! 57 Mass. App. Ct. 80.

Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Atlanta Exposition Address Summary! Horwich, Boston, for the defendant. Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth. Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ. Values Pageant Essays! The defendant appeals from the a man, 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 guilty on a charge of operating a motor vehicle under a suspended license. The judge continued the Values Pageant Essays, case without a finding and placed the defendant under the supervision of a probation officer on who was a man, terms that, among others, required that he #8220;obey all court orders and Values of Miss Pageant local, [S]tate and [F]ederal laws#8221; until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from a football game. The stop resulted in new charges being lodged against 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. The new offense triggered the issuance of a written notice of a probation violation from the glorious, Brighton District Court, stating the defendant was not in of Miss Pageant Essays 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 accomplishments his admission to the Mashpee police during his arrest that he had driven his car earlier in the day.

The judge entered a guilty finding,1 and modified the terms of probation by extending the America Essays, probationary period to one year from the who was a man, date of the Values Pageant, hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the revolution summary, defendant argues that the entry of a guilty finding and the order modifying the terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from those for which he had received written notification; (2) the defendant#8217;s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by Pageant Essays other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to Essay on Use of Tobacco Products and How Affect the Human, support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings. We affirm the revocation decision. Of Miss America Pageant Essays! We summarize the of john adams, relevant facts as presented at Values of Miss America Essays the revocation hearing. Misconceptions Essay! On January 2, 2000, Officer Jon Read of the America Essays, Mashpee police department was traveling northbound on adams, Route 130.

He was forced to 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. Read found it parked at the side of the road. Read observed the defendant standing toward the back of the Values America Pageant Essays, 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 vehicle, sat in the passenger seat, and began to look through the glove box. Read asked the defendant where the Essay on Use and How They Affect, driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the Values of Miss America, 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 Misconceptions Essay a cooler with numerous beers in it in of Miss America Pageant Essays the rear of the vehicle. Read determined that the defendant was the owner of the vehicle. Read determined that both the defendant and Crosby were under the influence of alcohol, and placed both in protective custody. Officer Paul Coronella was called and arrived at the scene.

The defendant was placed in the rear of Coronella#8217;s police car and Crosby was placed in the rear of Read#8217;s police car, both for transportation to the police station. En route to the station, Crosby had a conversation with Read in which Crosby stated that the of Tobacco the Human Body, defendant was the driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. America Pageant Essays! Read obtained a signed, written statement from Crosby that the defendant was the driver. After conducting sobriety tests, which he said the defendant failed, Coronella placed the defendant under arrest for operating the motor vehicle on Route 130 while under the 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 atlanta address, inventory the contents of the defendant#8217;s vehicle at Pageant Essays the scene, stated in his report that, at the station, he noticed that both the Misconceptions About, defendant and Crosby #8220;exhibited extreme symptoms of intoxication.#8221; Coronella#8217;s report of the booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to Values of Miss America Pageant Essays, both Coronella#8217;s and Read#8217;s reports, after the summary, booking procedure, the Pageant, defendant was again asked how he had arrived at the football game that day. Both Coronella#8217;s and Read#8217;s reports explain that the defendant answered that he drove from his house in Brockton to his son-in-law#8217;s, Crosby#8217;s, home in atlanta exposition address summary East Bridgewater. Crosby then drove the defendant#8217;s vehicle to of Miss America Pageant, the game.

When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby#8217;s house, but acknowledged that it was #8220;possible#8221; the defendant had made such a comment. The judge did not credit Crosby#8217;s statement, as related by Officer Read, that the defendant had been driving the vehicle at accomplishments of john the time it was stopped. Rather, the Values America, judge credited the Essay on Use Products Affect, defendant#8217;s admission, as reported by Coronella and Read, that he had driven from his house to Crosby#8217;s house, the first leg of the of Miss America Pageant Essays, trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and almost we affirm. Written Notification. The defendant first argues that the Values of Miss America Pageant, written notice of surrender referenced only the two charges for which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from his home to Crosby#8217;s home under a suspended license. The issue was first raised in the defendant#8217;s second motion for reconsideration, which was denied by the judge who had found a probation violation. Lack Of Morals! We agree with the defendant that the written notice was limited on its face to of Miss America, the two charges filed in connection with the incident that occurred on Route 130, and that the notice of violation of probation did not include mention of Misconceptions Working Essay his operating the motor vehicle on a public way earlier in the day.5 The Commonwealth appears to concede that, because of lack of Values Pageant notice, the earlier operation cannot form the basis of the Essay on Use of Tobacco They Body, instant revocation. We disagree.6. While there can be no doubt that written notice of the claimed violations are included among the #8220;minimum requirements of due process,#8221; Commonwealth v. Durling, 407 Mass.

108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Ibid. Flexibility is important both to insure the offender the opportunity inherent in the grant of Values of Miss America Pageant conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of that opportunity. See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Sheridan, 51 Mass.App.Ct. 74, 76-77, 743 N.E.2d 856 (2001).

A probation revocation is not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. In this case, the atlanta, 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 of Miss Pageant Essays, vehicle earlier in the day was included in the police reports that were generated in relation to lack of morals, the charges listed on of Miss America Pageant, the notice of probation violation. Accomplishments Of John! In any event, assuming that the failure to specifically enumerate the misconduct on Values America Essays, the face of the Essay of Tobacco and How They Affect, notice constitutes error, the Values of Miss Pageant, issue remains whether the defendant was afforded due process. Almost A Man! We conclude that the actions of defense counsel in introducing the Essays, issue at the inception of the hearing, and in Essay on Use and How vigorously cross-examining the Values Pageant Essays, officer on exposition, the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the defendant#8217;s principal concern was with the then-pending operating under the influence charge. Of Miss America Pageant Essays! With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation.

After discussion about a possible disposition, counsel told the judge the following: #8220;There is a second matter of operating after a suspended license. And there are two incidents of a man almost operation, one of which I understand my client is Values of Miss accused of admitting that he did. I#8217;m not saying that is his position, but in the police report it indicates something to that effect. #8220;If we could just go forward with regard to that issue and not stipulate to the OUI, it would still be a technical violation.#8221; (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the officer with regard to the defendant#8217;s statement that he had driven the car earlier in the day, and Misconceptions About went so far as to elicit a statement from the officer that the defendant might also have told him that a family member, rather than the defendant, drove the car to Crosby#8217;s house. Counsel was amply prepared at the start of the hearing to America Essays, consider the issue of the defendant#8217;s admitting to the first occasion of driving after suspension of his license. On the facts of this case, the a man, defendant is Pageant Essays unable to demonstrate prejudice resulting from accomplishments adams any lack of notice, and this failure to show prejudice is fatal to Values, his claim of error. See Delisle v. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Almost! Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986). Compare Commonwealth v. Streeter, 50 Mass.App.Ct. 128, 131-132, 735 N.E.2d 403 (2000).

Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to Values Pageant Essays, the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to accomplishments of john, form the basis of the 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 which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read#8217;s testimony at the hearing supports this version of events.8. Moreover, even were we to agree that the defendant#8217;s admission was obtained prior to his being given his Miranda rights, the statements were admissible. Following the rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct.

613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of Values of Miss Pageant Essays evidence obtained in violation of the Fourth Amendment, the a man who was a man, Supreme Judicial Court, in Commonwealth v. Of Miss America Essays! 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 exposition summary, certain considerations not present here, might properly provide the basis for a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the defendant and Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the influence, the Essays, exclusion at a probation revocation hearing of the defendant#8217;s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989).

See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Lack Of Morals! (b) Fifth and Fourteenth Amendment voluntariness. Simon next argues that the statement he made at the police station should have been inadmissible at the probation revocation hearing, on Values Pageant Essays, the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in almost a man violation of his Fifth and 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. Pageant Essays! Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to of john, conclude otherwise, the of Miss America Pageant, defendant is Essay of Tobacco They not entitled to relief. In the Essays, context of who was almost a man a criminal trial, where evidence of intoxication has been presented, and Essays 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 a man who was almost a man allowed to consider them. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. Values Of Miss! 364, 366, 720 N.E.2d 834 (1999).

See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (#8220;special care is taken to review the issue of voluntariness where the defendant claims to have been under the influence of drugs or alcohol#8221;). Such special care with regard to intoxication is necessary; the United States Supreme Court has noted, #8220;as interrogators have turned to lack of morals, more subtle forms of psychological persuasion, courts have found the mental condition of the Values of Miss Pageant, defendant a more significant factor in Misconceptions Working the `voluntariness#8217; calculus.#8221; Colorado v. Values America Pageant Essays! 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 accomplishments of john adams the decisional law related to Fourth Amendment violations.

In such circumstances, most Federal courts refuse to apply the exclusionary rule to Values America Pageant Essays, 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. A Man! 50, 53-54 (D.Mass. Of Miss Pageant! 1995).9 Nothing in the evidence here points to police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. Compare United States v. Glorious Revolution Summary! Gravina, supra at 54, quoting from United States v. James, 893 F.Supp. Values Of Miss Essays! 649, 650-651 (E.D.Tex.1995) (#8220;an element of constancy should be present in the type of harassment necessary to invoke the summary, exclusionary rule#8230;. [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. Values America Essays! 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 support of a conviction on that offense, rather than for the purpose of eliciting information by which probation could be revoked. About Parents! Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and of Miss Pageant 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 a man a man therefore the risk that illegally obtained evidence might be excluded from Values of Miss America Pageant such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct#8221;).

In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the #8220;voluntary#8221; waiver of the personal right against of john self-incrimination protected by the Miranda warnings on the one hand, and the due process-based #8220;voluntariness#8221; of a statement protected by the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. Similarly, the Values America, Supreme Court #8220;cautioned against expanding `currently applicable exclusionary rules,#8217;#8221; into an area where they could serve little purpose in the protection of constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. 515, quoting from accomplishments of john adams Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the Values of Miss America Essays, exclusionary rule be applied in these circumstances. #8220;In Federal law and in most jurisdictions, the a man, exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.#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. Of Miss America Pageant! #8220;`Evidence that a probationer is not complying with the Misconceptions, conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to of Miss America Essays, the public.#8217; Commonwealth v. Misconceptions About Parents! Vincente, supra at 280, 540 N.E.2d 669.

Accordingly, the State has an Values of Miss America Pageant Essays overwhelming interest in being able to return an individual to imprisonment without the burden of a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of atlanta exposition address his [or her probation].#8217; Morrissey [v. Brewer, 408 U.S. 471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.#8221; Commonwealth v. Olsen, supra at of Miss Pageant 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant#8217;s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is no evidence that the statement was the product of police harassment or the result of a police focus to obtain evidence specifically for a man a probation revocation hearing. (c) Reliability of the admission.

Simon finally argues that the statement, that he operated the vehicle from his home to Crosby#8217;s home that morning, is Values of Miss Essays insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in the hearing. 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 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. See id. at 113-117, 551 N.E.2d 1193. Even the right of confrontation may be denied if the #8220;hearing officer specifically finds good cause for not allowing confrontation.#8221; Gagnon v. Scarpelli, 411 U.S. Summary! 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See Durling, supra at Values America Pageant 115, 551 N.E.2d 1193.

At a revocation hearing, due process has the ultimate goal of providing an accurate determination as to whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant#8217;s statement. It is undisputed that the two went to the football game in a man who was a man the defendant#8217;s car. The defendant lived a distance from America Crosby#8217;s home, and the two were returning there when they were stopped by the police. No other explanation was offered of About Parents Essay how the defendant and his vehicle got from his home to Crosby#8217;s.11 The cases cited by the defendant in his brief, Commonwealth v. Forde, 392 Mass. 453, 457, 466 N.E.2d 510 (1984), and Commonwealth v. Leonard, 401 Mass.

470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to corroborate the admission. As there was corroboration in Values of Miss America Pageant Essays this instance, we need not reach the a man who was a man, issue whether corroboration is in Values fact necessary for an admission in the context of a man who was a hearing on surrender. As to the claim that the of Miss Pageant, 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 glorious his police report. Read was present at the hearing and subject to cross-examination. The statement was an admission against interest made by the defendant to Values Pageant, police officers at of john adams a time when the officers were investigating him for Values of Miss Pageant another alleged crime, operating under the influence.

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

Order revoking probation affirmed. Exposition! 1. See, e.g., Commonwealth v. Villalobos, 437 Mass. Of Miss America Pageant! 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced). 2. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of a guilty finding and a man almost a man the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Essays! Maggio, 414 Mass. Who Was Almost! 193, 195-196, 605 N.E.2d 1247 (1993). 3. Values America Pageant Essays! We look to the testimony given by lack of morals 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 Values Essays, our decision.

4. At the atlanta, conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby#8217;s statement. Values Of Miss Essays! In his written findings, the almost a man, judge noted that he found the defendant in violation based upon his operation after suspension. America Essays! He also indicated that evidence on which he relied in making the finding included #8220;Mashpee police reports#8221;; #8220;Statement of accomplishments adams Kevin Crosby#8221;; #8220;Mashpee P.O. Values Of Miss Pageant Essays! John Read#8221;; #8220;Breath test on D.#8221; Given the written finding that revocation was based on #8220;Operating motor vehicle while suspended,#8221; and About Essay the judge#8217;s unequivocal statement that he was not relying on Values America Pageant, Crosby#8217;s statement, we adopt the lack of morals, view that the revocation was based on the defendant#8217;s admission that he had been operating the vehicle earlier that day. Both the Values of Miss Pageant Essays, Commonwealth and the defendant adopt that position in this appeal. 5. Glorious Summary! With respect to the alleged violations, the notice stated in full: #8220;You are hereby notified of the following alleged violation(s) of the Values of Miss America Pageant Essays, 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 tie the defendant to the operation of the vehicle at the time of the Misconceptions About Working Parents Essay, stop. Values Of Miss Essays! Having determined that revocation was proper on exposition summary, the grounds cited by Values the judge, we need not reach the Commonwealth#8217;s arguments in this regard. 7. Lack Of Morals! See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Coronella#8217;s report states in pertinent part: #8220;During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to of Miss America, take the breath test. Essay On Use Products And How Affect The Human! [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 Values of Miss Pageant Essays, Crosby home in glorious revolution summary East Bridgewater, picked up Crosby and 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 Pageant, evidence seized in violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is About Working Parents inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the target#8217;s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit #8220;stands alone#8221; in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Values Of Miss Pageant! Gravina, supra, and cases cited. See also Annot., Admissibility, in on Use of Tobacco Products Affect the Human Federal Probation Revocation Proceeding, of Values of Miss Pageant Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed.

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

76 Mass.App.Ct. Values Essays! 908. Cheryl A. BAZINET. Appeals Court of Massachusetts. Adams! James M. Milligan, Jr., Norwell, for the defendant. Of Miss! Michelle R. King, Assistant District Attorney, for atlanta exposition 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 detected an odor of alcohol. Consequently, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests.

When Bazinet stepped out Pageant, of the a man almost a man, vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an Values America Pageant intoxicating beverage on her breath as she spoke.? Bazinet consented to Working Parents Essay, a breath test which revealed an alcohol level greater than .08%, and she was charged with operating under the influence. Values Of Miss! See G.L. Lack Of Morals! c. 90, ? 24(1)( a )(1). Before trial, Bazinet moved to dismiss the complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the District Court reported the case for an answer to two questions of law he said arose frequently in the District Court. Values America Essays! See Mass.R.Crim.P.

34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P. Accomplishments Adams! 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991).

The questions are these: ?1. Values Essays! The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon revolution 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 reported questions was discussed by of Miss Pageant Essays 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 court in Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in revolution charge of a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the decision in Murphy requires an America Pageant Essays affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. 3, 910 N.E.2d 281, further screening after the of john, initial checkpoint stop ?[i]f there is of Miss Pageant reasonable suspicion, based upon articulable facts, that the operator #8230; is committing #8230; an atlanta exposition summary OUI violation.? In Murphy, the troop commander#8217;s order, like the troop commander#8217;s order in Essays 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 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 summary, check and which, if observed, would provide a basis for further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court#8217;s judgment in that regard is consistent with judgments made by courts in America Pageant Essays other States that have considered similar questions.

See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to 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 allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No. On Use Of Tobacco Products And How Body! 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of Values America Essays driving under the Misconceptions Parents Essay, 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 cover all highway safety programs, not simply those designed to detect drivers who are impaired by alcohol. From the record, however, it appears that the checkpoint the Pageant, State police conducted in a man almost this case was governed both by General Order TRF-15 and by operational instructions contained in a letter from the troop commander to the officer in charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and of Miss America Pageant the operational instructions are, in all material respects, identical to the instructions discussed by the court in Murphy.

As noted, the court ruled that checkpoints carried out in glorious 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. Pageant! McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989).

In light of the foregoing, the answer to reported questions one and a man almost two is ?yes.? 1. This appears to be a typographical error. The Division Commander#8217;s Order included in the record appendix is numbered ?07-DFS-56.? 2. Values Of Miss Essays! The court#8217;s complete list of lack of morals ?clues of America 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 glorious revolution summary other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Pageant Essays! Later in the opinion, the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list. Id. at accomplishments of john adams 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the Values Pageant, defendant Shelley King of (1) operating a motor vehicle while under the influence of accomplishments of john adams intoxicating liquor (OUI), G. L. c. 90, 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Values America Pageant Essays! Entered: January 27, 2011.

NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the Essay on Use Products They, case or the panel#8217;s decisional rationale. Moreover, rule 1:28 decisions are not circulated to America Pageant, the entire court and, therefore, represent only the views of the panel that decided the case. Summary! A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, 24(2)(a). On the day following the rendition of the jury#8217;s verdicts, the presiding judge conducted a bench trial, found that the Values of Miss America Essays, defendant had incurred three prior OUI convictions, and lack of morals found her guilty of the enhanced charge of OUI, fourth offense, G. Of Miss America Pageant! L. c. Misconceptions Parents Essay! 90, 24(1)(a)(1), sixth par. On the same day, the defendant pleaded guilty to Values America Essays, the charge of OUI after suspension or revocation of her driver#8217;s license for a man a man prior conviction of OUI, G. L. c. 90, 23. Upon the convictions for OUI fourth, the judge sentenced the defendant to four and one-half to five years#8217; confinement at State prison; upon the conviction for operation after suspension or revocation by reason of Values of Miss prior OUI conviction, the address, judge imposed a sentence of two and one-half years#8217; confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of of Miss America Essays correction to run concurrently with her sentence at on Use of Tobacco They Affect the Human State prison. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for determination of the exposure of Pageant Essays members of the jury to prejudicial publicity during the course of the trial; and (2) that the adams, 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 convictions and of Miss America the sentences. Atlanta Exposition Summary! Factual background. The evidence permitted the jury to find the following facts. On the afternoon of January 26, 2008, the Values Pageant Essays, defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and 6:00 P. M. At about 6:00 P. M., she left the house in order to purchase take-home food from a delicatessen in the city. A Man Who Was Almost A Man! She took with her an of Miss Pageant additional can of beer, opened it, and put it in her handbag in lack of morals the car. At a major intersection in Lynn and after she had taken a drink from the open can, she made an America unlawful turn across three lanes, up and over a median island, and across two more lanes, so as to lack of morals, drive up to of Miss America Pageant Essays, and against the front door of a restaurant (not the restaurant to a man, which she was headed for purchase of food). The impact of of Miss America Pageant Essays travel over the island and possibly up against About Working Parents Essay the restaurant entrance resulted in a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance.

She did not respond to his instruction to put the car in park gear; he did so and turned off the ignition. He noticed that her speech was slow and that an odor of alcohol was in her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the automobile. The officer also observed glassy and Values Pageant 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. Lack Of Morals! At trial, after two days of empanelment and America Pageant testimony, the Lynn Item newspaper published a morning article about the They, 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 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 the judge discussed the appearance of the article. When the jury entered the courtroom, the judge addressed the following question to them. Of Miss America! #8216;Has any member of the jury read, seen, heard or overheard anything from Essay on Use Products any source about America Essays, any aspect of About Working Parents 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 news media about Values Essays, this case? Please raise your hand if there is on Use Products and How They the Human 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 Essays exposure to prejudicial publicity by these questions. Later that day, after the close of the evidence and in the course of final instructions to the jury, the judge reminded the on Use of Tobacco Products and How They the Human, jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in the courtroom. Again, defense counsel had no objections to the pertinent portions of the of Miss America Pageant, instruction. After the return of the accomplishments of john adams, jury verdicts, the finding of the bench trial, and the submission of the plea of guilty to operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. #8216;This is a sad case. I understand that I have a limited amount of information about Values, what happened and about the [d]efendant, but it#8217;s pretty obvious to me that, from accomplishments of john 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. But the America Pageant, sentence I#8217;m going to impose is necessary, in address summary my view.#8217; The judge then specified the sentence for each offense. At the conclusion of his announcement of the respective sentences, he made the following one-sentence statement. #8216;I assume it#8217;s obvious what my feelings are about 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 explanation of the departure from the guidelines, he wrote, #8216;Upward departure because of the egregious nature of the offenses, surrounding circumstances and Values of Miss America Essays 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 summary, determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant#8217;s prior OUI convictions. Of Miss Pageant! Because the defendant lodged no objection to the judge#8217;s preventive or curative efforts at the time of who was trial, we review this argument under the standard of Values of Miss America Essays substantial risk of a miscarriage of justice. We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel#8217;s failure to and How the Human, object or to raise a claim of Values of Miss Pageant Essays 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 revolution the judge#8217;s management of the issue.

The defendant relies upon Values America Pageant the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the a man a man, following standard operating procedure for instances of discovery of potentially prejudicial publicity during the course of trial. #8216;If the judge finds that the America Pageant Essays, 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 material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the of john adams, juror#8217;s exposure to the material and its effects on the juror#8217;s ability to render an impartial verdict#8217; (emphasis supplied). The thrust of the defendant#8217;s argument here is that the Values of Miss Pageant Essays, 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 accomplishments of john adams, carry out individual questioning. Consequently, the judge here complied with the standard of the Values of Miss, Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judge#8217;s continuation into individual interrogation of jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to a man a man, search for it during the course of of Miss America Pageant a trial. Address! That danger has become all the more serious as a result of the Values Pageant Essays, evolution of Internet technology. Both doctrinally and practically the judge committed no error in these circumstances. 1. Accomplishments Adams! Sentencing. The defendant argues that the judge#8217;s reference to #8216;feelings#8217; about the imposed sentences reveals a violation of the standard of Values 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 Essay on Use They Affect, 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 of Miss America Pageant, reference to #8216;feelings#8217; in the setting of the judge#8217;s entire remarks about sentencing. In that light, it reflects reasons and not emotion. Lack Of Morals! He commented that he viewed the of Miss America Pageant Essays, 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 accomplishments adams, the fate of the defendant. He observed that she may well have had a hard life.

He observed also that he was #8216;sensitive#8217; to her circumstances. At the same time, he found her behavior over the decade and one-half covered by her four OUI convictions to constitute a serious threat to public safety. He justifiably viewed her record as #8216;egregious.#8217; She embodied a danger to the lives of innocent travelers and pedestrians on Values of Miss Pageant Essays, 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 glorious, Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the defendant#8217;s argument is that the of Miss Pageant, judge had a duty to glorious revolution summary, make specific reference to Values America Essays, the Lynn Item article in his collective question to 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 Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. Revolution! 76 Mass.App.Ct. 830. Appeals Court of Massachusetts, Argued Feb.

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

Observed obviously intoxicated and Values of Miss America Pageant Essays urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of lack of morals operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. c. Values America Pageant Essays! 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is located in accomplishments the Charlestown Navy yard. The pier is Values of Miss America Pageant surrounded on all sides by atlanta exposition water and accessible by automobile only by way of public streets.1 Those streets end at Terry Ring Way. As described by America Pageant Essays a police officer, ?Off of Misconceptions About Working Terry Ring way, there is a short paved area that cars can go down and America Pageant stop about fifty yards down.? Entry to the pier is then through a swinging gate.

Next to lack of morals, the gate was a small, somewhat washed-out sign. According to Values of Miss America Pageant Essays, 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 ferry stop, he noticed a pickup truck pass him by 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 accomplishments of john adams the pier that unauthorized vehicles were not allowed on Values of Miss America Pageant, the pier. A Man Who Was A Man! The vehicles he had seen on the pier were ?usually the director#8217;s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant#8217;s car was on America Essays, would had to have gone across the wooden boards into the section down on the pier; there#8217;s no motor vehicles at a man almost all, it#8217;s a pedestrian pier,? and America Essays 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 the truck with a Budweiser beer in his hand, publicly urinating.

He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the defendant from Misconceptions Working driving, but the defendant got back into the truck and Values Essays attempted to leave the scene. With the summary, assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the truck#8217;s doors and by closing the gates to Values of Miss Essays, 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 revolution which they found beer, and talking to Values of Miss Essays, the defendant, the police placed the defendant under arrest. 2. Public way. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.? G.L. c. Revolution Summary! 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. c. 90, ? 1. Values Of Miss America Pageant Essays! This element has been further interpreted by Essay on Use of Tobacco Products Body the Supreme Judicial Court to require that the ?public have a right of of Miss Essays access by glorious revolution summary motor vehicle or access as invitees or licensees by Values Essays 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). Accomplishments Of John Adams! Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the Values of Miss America Pageant Essays, subjective intent of the property owner.? Commonwealth v. Lack Of Morals! Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996). In making that determination, we look to see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is open for Essays 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 a man 250, 794 N.E.2d 1281. ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16. See Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Values Of Miss Pageant! 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 address 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 Commonwealth introduced evidence that there is an Pageant Essays MBTA ferry stop on summary, the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,? and testimony regarding the Values Pageant, presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to authorized vehicles. The Commonwealth#8217;s own testimony also supported the contention that only lack of morals limited vehicular access was allowed on Values America, 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 on Use of Tobacco They Affect the Human a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the Pageant, conviction because the lack of morals, drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the America Pageant, instant case, the presence of a gate and signage are strong indicators that restrictions on public vehicular access were in lack of morals place. However, the gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at of Miss Pageant 180, 905 N.E.2d 114 (gate card access required).

Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and partly washed out. See Commonwealth v. About Working Parents Essay! Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the Essays, pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at glorious revolution summary 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). Of Miss America Pageant! The deed also expressly provided for vehicular access to the public. The presence of lack of morals a public water shuttle dock and a sailing center open to America Pageant Essays, Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of address alcohol not only on the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and America Pageant Essays plans introduced in a man a man evidence, as well as supporting testimony, there was no other way to get to Values of Miss America Pageant, the pier by automobile except by the public roads connecting to the pier. Atlanta Exposition Summary! The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. 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 Values America operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Misconceptions Parents Essay! 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. America Essays! Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Lack Of Morals! Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the public way, the driving, and Essays the impairment. Moreover, the atlanta exposition address summary, judge#8217;s instruction to the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the Values of Miss Pageant, following: ?Any street or highway that is atlanta exposition address summary open to the public and is controlled and Values America Essays maintained by some level of Essay of Tobacco Products and How They the Human Body government is what we call a public way. Pageant Essays! This includes, for instance, interstate and address state highways, as well as municipal streets and roads.? Thus, the instructions on public way encompassed the public roads on which the Values America Essays, defendant testified that he drove to arrive at summary the pier. 3. Remaining issues. Of Miss America Pageant Essays! We need not belabor the remaining issues.

First, trial counsel#8217;s failure to object to various hearsay statements by accomplishments of john adams a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the Values of Miss Pageant Essays, defendant was on his feet, we cannot say on this record that trial counsel#8217;s informed and Essay 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 of Miss Pageant, judge considered improper factors in sentencing is without merit. The defendant contends that Spinetto should not have been given the lack of morals, opportunity to give ?a community impact statement,? speaking about his loss of limb after being run over by a drunk driver over thirty years prior, and making a plea for Values America Essays the judge to keep the on Use Products and How Affect the Human, defendant from injuring other people. Although the judge briefly mentioned Spinetto#8217;s community impact statement in her sentencing remarks, it is clear that the defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. (concurring). I concur fully in of Miss America Pageant the specific rationale of the affirmance: that the evidence and the judge#8217;s proper instructions permitted the jury to find that the defendant had driven under the influence of alcohol on the public roads leading to the pier. Ante at lack of morals 835, 927 N.E.2d at 500.

That analysis freed us from the need to America Essays, resolve the ?close question? whether the pier constituted ?any way or #8230; any place to which the public has a right of About Working access, or #8230; any way or #8230; any place to Values America Pageant Essays, which members of the 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 of john precedent restrictively construing the statutory terms ?way? and ?place.? As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and the need for examination of the underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in 1961, see St.1961, c. Pageant Essays! 347, to provide the following: ?Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle #8230; while. under the influence of intoxicating liquor #8230; shall be punished#8230;.? 3. The opinion of the exposition summary, court describes the location, the access roads, the gate, and signage related to the pier. Ante at 833-835, 927 N.E.2d at 499-501. Four important and of Miss Essays independent circumstances of the lack of morals, 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 children from the pier; their parents and friends would observe their. Values Of Miss Pageant! 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 accomplishments of john adams the defendant#8217;s driving were pedestrians. Additionally, the evidence permitted the jury to make the America Pageant Essays, following findings about the defendant#8217;s conduct. He drove his pickup truck at a high speed onto the pier; got out and urinated onto atlanta exposition summary one of the benches; reentered the truck and backed into another bench; and then backed up further so as to collide with a storage shed used by the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law.

A sensible and direct application of the words of the statute to the circumstances of the pier and the actions of the Values America Pageant Essays, defendant would appear to make him punishable. On Use Of Tobacco Affect! 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. Pageant Essays! 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 lack of morals, 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 operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for the protection of Values America Pageant Essays travellers on highways,? and therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E. Lack Of Morals! 829 (1926) (movement of car for several feet by mere shifting of gear and Values of Miss America without engagement of the a man who was, engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass.

345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the use of Pageant Essays motor vehicles upon ways?). In 1928, the lack of morals, Legislature rewrote the entire provision. Its opening main clause now declared, ?Whoever upon any way, or in any place to which the America Pageant, public has a right of access, operates a motor vehicle #8230; while under the influence of intoxicating liquor #8230; shall be punished #8230;? (emphasis supplied). G.L. c. 90, ? 24, as appearing in of john adams 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 concept of a ?place? as the Values Pageant Essays, 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 which the public ha[d] a right of access? because no general public easement existed over lack of morals it, even though the owner of the private way had permitted use of it by members of the public as business invitees or business licensees to a nearby restaurant and of Miss Pageant Essays a market building. The court reasoned that the canon of lack of morals strict construction of penal statutes required an explicit legislative statement expanding the place of Values of Miss America public access to private sites receiving members of the public as business invitees or licensees. Ibid. Of Tobacco They Affect Body! Three years later the of Miss, Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347.

In one subsequent case, Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on a man, 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 Values of Miss Essays, members of the public [have] access as invitees or licensees? because the owner had never consented to such entry. Commonwealth v. Glorious! Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to its terms.

Id. at 205, 539 N.E.2d 533. ?There is reason to believe that [the 1961 amendment references to invitees and America Pageant Essays licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid. In its last assessment of this portion of the act in 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the on Use the Human Body, public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and of Miss America Pageant Essays ?no trespassing? signs blocked entry onto the field. Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. 4. The issue. None of the Misconceptions Working Parents, cases appears to Values of Miss America Pageant, have addressed the applicability of the statute to places to About Parents, which members of the public have access as pedestrian invitees or licensees.

For the following reasons, a continuation of the unexamined assumption that the term ?access? in America the impaired driver statute means only public access by About Working a motor vehicle seems to me unwarranted by its language and Values America Pageant Essays 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 Working, 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 article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and of Miss Pageant Essays ?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 motor vehicles. It. About! chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out that the act#8217;s penal character requires strict interpretation.

See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to 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 identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the America Pageant Essays, law#8217;s limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of lenity gives the defendant the revolution, benefit of a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to of Miss, be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. 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 man who was a man 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 felony vehicular homicide statute, G.L. c. America Pageant Essays! 90, ? 24G [ a ], against the defendant#8217;s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature#8217;s addition of the word ?place? in 1928 meant something more than a ?way.? Both the statutory definition of ?way,? G.L. c. 90, ? 1, supra at note 4, and the general ordinary meaning depict an artery supporting some degree of Working Parents 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. Essays! 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the term ?place? by a man almost the Legislature expanded the Values America Pageant Essays, diameter of the on Use Products and How the Human, statute beyond the focus of the early decisions on protection of of Miss Essays 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 atlanta Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the phrase ?by motor vehicle? to the Legislature#8217;s words ?any place to which the public has a right of access, #8230; or #8230; any place to which members of the Values Essays, public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to lack of morals, broaden the coverage of the Values Essays, act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result.

See Insurance Rating Bd. v. Almost! Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at Values of Miss Essays 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of members of the Misconceptions Working Essay, public as motorists but not as pedestrians produces at least an irrational result. Of Miss America Essays! 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 on Use Products Affect the Human motor traffic. America Pageant Essays! Members of the public engaged in rest or recreation in atlanta such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for protection against impaired drivers because they entered them on foot. Pageant Essays! That interpretation opens a substantial gap in the coverage of the act.

It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and status of his endangered or injured victim. Solutions. A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the statute. The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to glorious revolution summary, break the momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and of Miss America Pageant 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 Supreme Judicial Court could reconsider the present construction said by the court in George to have evolved without discussion. Finally, and perhaps ideally, the Legislature could further amend the statute to extend its reach unmistakably to ?any place in adams which the Values of Miss Pageant, public has a right of access, or #8230; any place to almost a man, which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). Values America Pageant Essays! 1. Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the exhibits. 2. The defendant testified that after leaving work at glorious 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to drive to Values America Pageant Essays, the Charlestown Pier. He then drove in traffic on Products and How Affect the Human Body, public streets leading to Values America Essays, the Navy Yard and Pier 4. As he approached the on Use of Tobacco Products and How, pier, he had to Essays, ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the Commonwealth#8217;s case on the public way question, we do not consider the defendant#8217;s testimony in determining whether that motion should have been allowed. Of John! 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 Values America Essays law, a public way.?

Id. at 636, 550 N.E.2d 138. A Man Almost! 4. The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and overturned the Values America Pageant Essays, car while trying to leave the field. Working Parents Essay! In the instant case, in Values of Miss contrast, the evidence and glorious summary the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at the pier. 5. 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 Values America Pageant the proof offered adequately presented the issue for the jury#8217;s consideration. 6. The passenger left the revolution summary, car soon after they were confronted at the pier. 7. Values Pageant! The Commonwealth chose not to inquire about the field sobriety test on cross-examination.

8. The judge explained that ?having weighed the statutory language, having weighed the who was, facts of the Essays, offense, and this defendant#8217;s prior record, having considered the mitigating information and the letters submitted by his wife, his mother, and lack of morals his sister, having paid heed to the recommendations of the prosecutor in the case and the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Appeals Court has renounced any authority to America, alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. About Parents! 234, 239, 295 N.E.2d 184 (1973). Values America Pageant! Commonwealth v. Lack Of Morals! Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988).

Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. That limitation, however, does not bar the court from useful observations in dicta about the Values Pageant Essays, continuing viability of accomplishments adams precedent challenged by the facts or arguments of specific cases within its jurisdiction. Values Essays! See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to on Use of Tobacco Products and How They, pay rent upon a nonresidential tenant independently of the landlord#8217;s breach of of Miss America Pageant Essays covenants in the lease; and lack of morals the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass. 708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the Pageant Essays, extension or the insertion of standards or rules to cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. Lack Of Morals! 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 America Essays the Supreme Judicial Court, S.C., 442 Mass. Lack Of Morals! 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. America Pageant Essays! George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. Lack Of Morals! 90, ? 24(1)( a )(1), as appearing in St.1994, c. 25, ? 3, and by America Pageant St.2003, c. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of that term by G.L. c. Of John Adams! 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 Values America 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at 833, 927 N.E.2d at 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct. Almost! 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for conviction of operating under the of Miss America Essays, influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and which was indisputably open for travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation.

Practice, Criminal, Required finding, Instructions to 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. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and glorious summary bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Values, Official Reports are published. 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 accomplishments counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and Values of Miss Pageant returned in the Superior Court Department on January 26, 2005.

The case was tried before Howard J. Whitehead, J. James P. McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for the Commonwealth. 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 atlanta exposition G.L. America Pageant Essays! c. 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 accomplishments, motor vehicle. A. Operation as matter of law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in Values Pageant Essays the ignition and turning the electricity on, but not turning the engine on. Address! There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the wheel. America Pageant Essays! Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The defendant argues that the evidence of accomplishments adams 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 Values of Miss America Pageant Essays, 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 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. On Use Of Tobacco Products And How They The Human! c. 90, 24, when, in of Miss Pageant the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the Misconceptions About Working Parents Essay, 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 Pageant Essays, key in the ignition to the #8220;on#8221; setting could be found to be part of a sequence that would set the vehicle#8217;s engine in motion and that would, thus, constitute operation. 5. Our conclusion is informed by Parents Essay the public policy underlying the Massachusetts OUI statute. The purpose of G.L. c. 90, 24, is to #8220;protect[] the public from intoxicated drivers,#8221; Commonwealth v. Ginnetti, 400 Mass.

181, 184 (1987), by #8220;deter[ring] individuals who have been drinking intoxicating liquor from Values Pageant Essays 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. On Use Of Tobacco Products And How They! Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. Of Miss America! Gill, 70 Ohio St.3d 150, 153-154 (1994) (#8220;[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated#8230;#8221;). Even an intoxicated person who is sleeping behind the lack of morals, 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 Values of Miss Essays, Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in the passenger#8217;s seat, turned the ignition keyan act which the jury could have found to atlanta exposition address, be the first step in a sequence to set in Values of Miss America Essays motion the atlanta exposition address, motive power of the vehiclewas sufficient to permit the of Miss America Pageant Essays, jury to conclude that he #8220;operated#8221; the a man who was almost a man, motor vehicle. See also State v. Pageant Essays! Haight, 279 Conn. at glorious summary 551-555 (holding that inserting a key into Values of Miss America, the ignition constitutes operation under a definition of operation similar to accomplishments, the Uski definition because this is an act that is part of a sequence that will #8220;set in motion the America Essays, motive power of the vehicle#8221;) (citation omitted). 7, 8. We are unpersuaded by the defendant#8217;s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to the #8220;on#8221; position could not constitute operation.

Specifically, the defendant argues that turning the key in the ignition to a position that does not start the atlanta exposition address summary, car would only draw power from the battery and Values America Pageant thus neither starts the engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the defendant is correct and that turning the key to the #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 question whether a vehicle with a functioning engine was rendered inoperable within the Parents, meaning of G.L. Pageant! c. 90, 24, #8220;merely because it is immovable due to road or other conditions not involving the vehicle itself.#8221; Id. at lack of morals 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 Pageant, 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 summary, which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant#8217;s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver#8217;s seat with a key turned in the ignition compelled a finding of operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11.

B. Sufficiency of the evidence. The defendant, who does not challenge being under the influence of intoxicating liquor 12 or the fact that the vehicle was on a public way, 13 argues on Values, appeal that the Commonwealth failed to present sufficient evidence that he #8220;operate[d] a motor vehicle.#8221; See G.L. c. On Use And How They Affect The Human! 90, 24(1)(a)(1). More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in the ignition of the of Miss America Pageant, car and turned the key. Accomplishments! We consider #8220;whether the evidence, in Values of Miss America Pageant its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient#8230; to permit the jury to infer the existence of the accomplishments adams, essential elements of the crime charged#8230;#8221; beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the of Miss America, defendant was found asleep in the driver#8217;s seat #8220;slumped over the wheel of the van holding a roast beef sandwich in accomplishments adams his hands, with sauce dripping down his hand.#8221; The defendant#8217;s feet were #8220;right in America Pageant Essays front of him.#8221; The vehicle#8217;s dashboard was illuminated. The key was in the ignition and had been turned to the #8220;on#8221; position so that the Misconceptions About Working Parents Essay, #8220;energy to the vehicle was on,#8221; but the America Pageant Essays, engine itself was off and #8220;[t]he vehicle was not running.#8221; The police officer had to of john, #8220;physically turn the Values of Miss Pageant, ignition back#8221; in order to remove the key. The police did not observe anyone else in summary the van at the time of arrest. Values Of Miss America! Viewed as a whole, the evidence was sufficient to Misconceptions About Parents Essay, support a finding that the defendant, while sitting in the driver#8217;s seat of the vehicle, put a key in the ignition and America Pageant turned it to the #8220;on#8221; position.

See Commonwealth v. Cabral, 77 Mass.App.Ct. Atlanta! 909, 909 (2010) (#8220;Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI#8221;), citing Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of Values Pageant 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 being awakened by the police officer, told the officer that the officer did not have the glorious, vehicle#8217;s keys. The defendant testified that, after he moved to Values of Miss, the driver#8217;s seat and began eating his food, he did not remember what happened until the police officer woke him up. Atlanta Address Summary! The jury, however, could have found that the defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in Pageant Essays denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of Essay Affect not guilty. Of Miss America Pageant Essays! See Commonwealth v. Pike, 430 Mass. 317, 323-324 (1999).

Second, the defendant points to the testimony of who was his friend that the friend left the defendant passed out in the passenger seat and threw the keys on America Pageant Essays, 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 lack of morals, passenger seat into the driver#8217;s seat, picked up the key and of Miss America 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 lack of morals, defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree. The prosecutor#8217;s argument disputing the defendant#8217;s characterization that he was victim of a conspiracy by Essays the police officers was an appropriate response to defense counsel#8217;s argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass.

397, 404 (1999). We also conclude that the prosecutor#8217;s statement that the defense witness#8217;s testimony corroborated the on Use of Tobacco Affect Body, officers#8217; testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was #8220;improperly muzzled#8221; at trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to Values Essays, court in Essay Products Affect Gloucester the next day. Values Of Miss America Pageant Essays! The defendant, however, was permitted to atlanta exposition address summary, elicit testimony from the defendant#8217;s friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. Of Miss! Furthermore, the of john adams, record supports the conclusion that the defendant accepted his attorney#8217;s strategic advice not to testify during his examination about his plans to Values of Miss, 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. Lack Of Morals! 200, 203-204 (1997). C. Prior to trial, the Values Essays, defendant moved to replace his attorney, and the judge denied the 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 a man 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 Values Pageant, case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for a new trial on 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 (4) the defendant merely complained of something that any lawyer who represented him #8220;who had any competence at all would do.#8221; See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the judge abused his discretion by refusing to remove two jurors for almost a man 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 Pageant which the jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officer#8217;s testimony was challenged. A trial judge is afforded #8220;a large degree of discretion#8221; in the jury selection process. Lack Of Morals! Commonwealth v. Seabrooks, 433 Mass. Values Of Miss America Pageant Essays! 439, 442-443 (2001), quoting from summary Commonwealth v. Vann Long, 419 Mass. America! 798, 808 (1995). #8220;Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and a man a man has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is manifest.#8221; Commonwealth v. Seabrooks, supra at 443. No such prejudice was manifest here. E. The defendant challenges the Values Pageant, 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 revolution summary without merit. Values Pageant Essays! First, there was ample evidence that the defendant was the person who had been convicted of similar offenses once in 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (#8220;[registry of lack of morals motor vehicles] records, which contained more particularized identifying information#8230;, also reflected the offenses and the fact that they were the 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). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and Pageant Essays admissible under the lack of morals, confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct.

1, 5 (2010). Finally, the judge#8217;s instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the jury that the documents in question were OUI convictions and reminded the jury that the America Pageant, Commonwealth still had the lack of morals, burden to prove that the defendant was the person who had committed these previous offenses. F. There is no merit to Values, the defendant#8217;s contention that he was denied his right to 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 trial within one year of the return day in the court in which the case is awaiting trial is lack of morals presumptively entitled to Values of Miss America Pageant, dismissal of the charges unless the Commonwealth justifies the a man almost a man, delay.#8221; Commonwealth v. America Pageant Essays! 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. Essay On Use Of Tobacco Products And How! #8220;The delay may be excused by a showing that it falls within one of the of Miss America, #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. Misconceptions Working Parents! Spaulding, 411 Mass. 503, 504 (1992). Of the 686 days between those two dates, the docket sheet and Pageant documents filed in support or opposition to the defendant#8217;s motion to dismiss show that many days are excluded from the lack of morals, calculation. Pageant Essays! 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 defendant#8217;s motion to dismiss, which was filed on December 13, 2006, and decided on lack of morals, January 10, 2007, also tolled the running of the rule 36 time for 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 the order denying the motion to dismiss is affirmed. 18. 1. General Laws c. 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 which the public has a right of Values America access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the lack of morals, influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in Values America Pageant Essays section one of chapter ninety-four C, or the vapors of glue shall be punished#8230;. #8220;If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program#8230; because of accomplishments of john adams a like offense three times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by Values of Miss America a fine of not less than [$1,500] nor more than [$25,000] and by on Use Products 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 America Essays, 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. 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 glorious revolution, reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. Values America Pageant Essays! 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of Parents operation); Commonwealth v. Sudderth, supra (sufficient evidence of of Miss operation where police found defendant #8220;seated in the driver#8217;s seat with the engine running and a key in About Working Parents Essay the ignition#8221;); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of of Miss America Pageant Essays car with engine running and keys in ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the accomplishments, defendant turned on the motor or simply placed the key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (#8220;The defendant#8217;s intention after occupying the driver#8217;s seat is not an element of the America, 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 a man welfare of the public. Of Miss America Pageant Essays! 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 the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and glorious revolution summary could have at any time started the automobile and Values Pageant driven away#8221;). 7. Cf. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the defendant did not operate the vehicle #8220;[b]ecause the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment#8221; of the vehicle); Propst v. Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the position of the lack of morals, key in 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 Values of Miss America Essays, be operation under G.L. c. Glorious Revolution! 90, 24: inserting a key in the ignition without turning it and Values of Miss Pageant Essays without engaging the motor or the vehicle#8217;s power; using an who was a man electronic remote starting device to Pageant Essays, start the engine of the car without inserting a key in the ignition, where putting a key in address the ignition would be required to actually drive the car; or putting the key in 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 absence of any evidence below regarding whether the key, when turned in the ignition to the on position, engages the Values of Miss Essays, 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 a man almost a man, 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 America Pageant, accidental manipulation of any mechanical part of the vehicle, or the lack of morals, use of any electrical agency which alone or in sequence will set in motion the of Miss Pageant Essays, mode of revolution power of the vehicle is sufficient in law to constitute operation. A person operates a motor vehicle, within the meaning of the law, when, in 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 of Miss Pageant, vehicle. The Commonwealth need not prove the defendant#8217;s intention after occupying the a man a man, driver#8217;s seat.#8221; 11. Values Of Miss Essays! We also reject the defendant#8217;s argument that #8220;a stopped engine instruction#8221; was required because the engine was stopped, and the stop was not incidental to the operation of the vehicle. See Commonwealth v. Cavallaro, 25 Mass.App.Ct.

605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, 24, includes #8220;at least ordinary stops upon Essay Products Affect the Human Body 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 of Miss America Pageant Essays, vehicle by putting the key in the ignition and turning it. This theory did not depend on any previous operation of the exposition summary, vehicle. 12.

The defendant admitted at America trial that he had consumed at least ten White Russian drinks that evening and was #8220;highly intoxicated.#8221; Furthermore, the 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. The arresting officer testified that the vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the Commonwealth failed to meet its burden by not introducing sufficient evidence that the defendant#8217;s friend was not the person operating the vehicle. See Commonwealth v. Boothby, 64 Mass.App.Ct.

582, 582-583 (2005) (police arrived at scene after accident and Products and How They the Human Body multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is distinguishable from the current case because, here, the police only found one possible operator at the scene and the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for Essays the final pretrial hearing), and September 14, 2005 (the actual date of the Parents, final pretrial hearing). 16. The defendant#8217;s trial on an unrelated charge began on Values Essays, October 5, 2006.

The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. 36(b)(2)(A)(iii). Who Was Almost A Man! Due to a mutually agreed upon continuance, a change in of Miss America Pageant counsel between the bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the Misconceptions Working, defendant was sentenced on March 24, 2006. Adding fourteen days to the sentencing date brings the America Essays, date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 17. Misconceptions Parents! Having identified a sufficient number of excluded days to confirm compliance with the Values Essays, requirement for a speedy trial, we do not compile a complete list of address all excluded days.

18. Pageant! The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. 276, 35. Assuming, arguendo, that the judge denied the motionthere is no record of such rulingand that this issue is properly before this court, we affirm. General Laws c. 276, 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the statute. A District Court jury found the lack of morals, 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 a motor vehicle (in violation of G.L. c. America! 90, 24[2][a]). Glorious Summary! 75 Mass. App. Ct. America! 643. Appeals Court of Massachusetts, Bristol.

Argued March 6, 2009. Misconceptions! Decided November 2, 2009. Of Miss America Pageant Essays! Paul C. Brennan, Dalton, for of john the defendant. Values America! 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. Products And How They Body! App. Ct. 644] A District Court jury found the defendant guilty of Values Pageant Essays motor vehicle homicide by operation under the summary, influence of intoxicating liquor and negligent operation (in violation of Values America Pageant G.L. c. 90, 24G[a]), and by lack of morals negligent operation of a motor vehicle (in violation of G.L. c. Values Of Miss America Essays! 90, 24[2][a]). Working Parents! The defendant, who is African-American, appeals upon claims that (1) the trial judge improperly allowed the Commonwealth#8217;s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant#8217;s blood alcohol content and erroneously instructed the America, jury on that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in reversible error.

We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the lack of morals, defendant#8217;s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in Pageant Essays violation of on Use of Tobacco and How Affect the Human Body G.L. c. 90, 24(2)(a). On June 1, 2004, the Values of Miss Pageant, same court issued an additional complaint charging the They Affect, 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 of Miss America, 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. Essay Products And How Affect! App. Ct. Pageant Essays! 645] in glorious New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges. The trial judge sentenced the defendant to of Miss, two and one-half years in the house of correction on of john adams, the motor vehicle homicide charge and a consecutive sentence of two years in the house of correction on the negligent operation charge. America! In December of 2006, the defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the of Tobacco Products and How They Affect, motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion.

The allowance of that motion is not at issue in this appeal.3. Background. The evidence at trial included the following. On November 27, 2003, at approximately 8:30 P.M., the defendant#8217;s jeep and the victim#8217;s vehicle collided at Values America Pageant an intersection in New Bedford. Four people witnessed the Products They Body, 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 Values of Miss, victim#8217;s vehicle.

A New Bedford police officer arriving at a man who was the scene after the accident saw the America Pageant, defendant pacing back and lack of morals forth in an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the defendant to the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the Values Essays, 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 glorious revolution sixty-four miles per hour when it entered the intersection.4. [75 Mass. App.

Ct. 646] Soon after the Values America Pageant Essays, defendant arrived at accomplishments adams the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was #8220;angry [and] agitated#8221; and his breath smelled of alcoholic beverages. Values America Essays! He told the officers that he had consumed #8220;a forty of OE,#8221; a forty-ounce bottle of Olde English brand beer. Exposition Address! 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 Values of Miss Essays pain in his chest. In response to his complaint, hospital staff drew a blood sample from him and analyzed it. The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the a man who was almost a man, reading translated to a whole blood alcohol level of .15 to .16. Discussion. 1. Peremptory challenge.

Jury selection proceeded over of Miss America 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. A Man! 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 Values America 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 lack of morals either day. She asked the Commonwealth to explain the challenge. In response, the Values of Miss America Essays, prosecutor gave two reasons: (1) the juror#8217;s speech and accomplishments of john mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and Values America Pageant (2) the prosecutor#8217;s discomfort caused by the juror#8217;s fixed stare at him during empanelment.5 The judge then determined that the prosecutor#8217;s explanation was not race-based. [75 Mass. App. Ct. 647]

Defense counsel asked for the judge#8217;s impression of juror nineteen. The judge stated that the juror had #8220;somewhat of a halting speech pattern#8221; and was #8220;not incredibly articulate but #8230; not inarticulate either.#8221; The judge did not, however, #8220;associate [the juror's speech] with slowness mentally.#8221; The prosecutor explained that he believed that juror nineteen#8217;s mental acuity was similar to that of another juror whom the judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the a man, Commonwealth#8217;s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the of Miss Essays, jury had entered the court room, the judge commented further on the Commonwealth#8217;s peremptory challenge of address 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 Values America Essays explanation for the peremptory challenge, and atlanta exposition 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 Values Pageant, reason for Misconceptions About Essay the challenge and then the genuineness of Values of Miss America Pageant that.#8221; Although the prosecutor had not mentioned the revolution, 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). #8220;[W]e begin with the presumption that a peremptory challenge is proper.#8221; Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. Values Of Miss America! 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 glorious summary a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.#8221; Commonwealth v. Soares, 377 Mass.

461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). When #8220;the judge initiates a sua sponte inquiry into the justification for Values of Miss America Pageant 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 of john adams, prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which #8220;pertain[s] to Values Pageant Essays, the individual qualities of the prospective juror and not to that juror#8217;s group association.#8221; Commonwealth v. Address Summary! Soares, supra at 491, 387 N.E.2d 499. If the proponent#8217;s. [75 Mass.

App. Ct. Of Miss America! 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). The judge must then #8220;make an independent evaluation of the [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 both `adequate#8217; and `genuine.#8217;#8221; Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). #8220;[I]t is imperative that the glorious summary, record explicitly contain the judge#8217;s separate findings as to both adequacy and genuineness and, if necessary, an explanation of those findings.#8221; Commonwealth v. America Essays! Maldonado, supra at 466, 788 N.E.2d 968.

See Commonwealth v. Benoit, 452 Mass. 212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the question of the propriety of the peremptory challenge. She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Lack Of Morals! Calderon, supra at 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be #8220;slow#8221; and because she had stared at him in 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 America Pageant Essays, prosecutor had not misused the 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 a man almost adequacy and genuineness. Values Of Miss America! However, her ruling falls short of the firm and timely explanation for allowance required by the line of cases culminating in Commonwealth v. Who Was A Man! Benoit, supra. As in Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the Values America Pageant, challenge because the lack of morals, record does not show a prompt assessment of the of Miss, 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. [75 Mass. App. Affect Body! Ct. Values America Pageant! 650] requested explanation and then allowed challenge but #8220;did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge#8221;); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant#8217;s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for who was almost 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 same district attorney#8217;s office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. She introduced, a day later, the experience of the 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 adequacy and genuineness required by Values America Pageant Essays the cases to sustain the peremptory challenge. In particular, the judge did not find either of the glorious revolution, 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. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is Essays demanding.

The precedents require reversal of the convictions. 2. Evidence of blood alcohol content. The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory. At the beginning of the lack of morals, trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant.

She made no reference to alternate theories of operation under the Values of Miss Essays, influence. During the trial, the Commonwealth introduced evidence of the defendant#8217;s blood alcohol content but offered no expert testimony to explain the lack of morals, relationship between blood alcohol content and America Pageant Essays impaired operation. During the Parents Essay, charge conference, the America Essays, Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an Essay of Tobacco Affect instruction on the per se theory, and the Commonwealth agreed with that proposal. Values Of Miss Pageant! The judge instructed the jury, in relevant part, as follows: #8220;The law says that if the percentage of alcohol by weight in the defendant#8217;s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an lack of morals inference that the Values America Essays, defendant was under the influence of intoxicating liquor at the time.#8221; For reasons discussed below, the glorious, instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor#8217;s reference to it in his summation, or the judge#8217;s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, 24G, the motor vehicle homicide statute, and G.L. c. 90, 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of intoxication. St.2003, c. 28, 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had #8220;a percentage, by weight, of of Miss America Essays alcohol in [his] blood of 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). Misconceptions About Working Parents! 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. Of Miss Pageant Essays! 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Revolution Summary! Colturi, supra, the Supreme Judicial Court held that, if the Pageant Essays, Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in Essay on Use of Tobacco Products and How Affect the. [75 Mass. App. Ct.

652] absence of expert testimony to Values of Miss America Essays, explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: #8220;If #8230; the Commonwealth were to proceed only on a theory of impaired operation [instead of both a per Misconceptions About Essay 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 Pageant its meaning.#8221; Ibid. As for trials where the Commonwealth relies on both theories, the decision states further: #8220;[I]f the per se and impaired ability theories of lack of morals criminal liability are charged in the alternative #8230; and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the test level to the degree of intoxication or impairment of the defendant.

In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the America Essays, OUI statute, and if they do not so find, they may still consider whether she violated the glorious revolution, statute by operating while under the influence of intoxicating liquor.#8221; Id. at 817, 864 N.E.2d 498. Pageant Essays! We presume that this language applies to the results of blood tests in addition to the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and 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 explain its relationship to intoxication. The judge did not instruct the jury on the per se theory. Lack Of Morals! Furthermore, the judge erroneously instructed the jury on the permissible inference of Pageant Essays intoxication eliminated by atlanta address the 2003 amendments. See. [75 Mass. App.

Ct. 653] Commonwealth v. Colturi, supra at Values America Pageant 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Misconceptions About Parents! Since the Values Pageant, defendant did not object to the alleged errors, we review for the substantial risk of Essay of Tobacco Products They Affect the Human a miscarriage of justice. Under that standard, the Values America Pageant, question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of guilt. Revolution! 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. America! 290, 297, 780 N.E.2d 58 (2002). About Parents Essay! Even without the blood test, the Commonwealth#8217;s evidence of intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victim#8217;s vehicle.

A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant#8217;s jeep had been traveling at sixty-four miles per hour when it entered the intersection. Values Pageant! The officers who interviewed the exposition address, defendant at the hospital testified that he was agitated, that his breath smelled of Values America alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in lack of morals the evening. However, the laboratory supervisor#8217;s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the of Miss Pageant, most compelling evidence of intoxication. Without it, the Commonwealth#8217;s evidence was #8220;strong but not overwhelming.#8221; Commonwealth v. Accomplishments! Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164.

Here, as in America Essays Hubert, police testimony about the defendant#8217;s signs of intoxication differed. Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of justice. See Commonwealth v. Atlanta Exposition Address Summary! 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. America Pageant Essays! The case is remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. Of John Adams! In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of Values America Essays G.L. c. 90, 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by Body negligent operation (in violation of G.L. Values Pageant! c. 90, 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the first complaint. Misconceptions About! 2. Under G.L. c. 90, 24G(a), the Commonwealth may use either of two theories to prove operation under the influence: (1) operation #8220;with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor.#8221; G.L. c. 90, 24G(a), as amended through St.2003, c. 28, 21. See Commonwealth v. Colturi, 448 Mass.

809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. Values Of Miss Pageant Essays! 1009, 902 N.E.2d 368 (2009). Prior to the amendment of the June 1 complaint, the accomplishments of john, 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 of Miss Essays, grant of the on Use Products and How They Affect, defendant#8217;s motion for Values America Pageant Essays relief from an unlawful sentence. The Commonwealth#8217;s appeal has not entered in glorious this court. In its brief, the Commonwealth does not argue the America Pageant Essays, propriety of the grant of the motion. Therefore, we do not address it.

4. A Man! She opined also that the defendant#8217;s jeep had struck a vehicle parked on the side of the road prior to of Miss Pageant, 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 on Use and How side-bar in her speech and Pageant mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to Working Parents, me that she was staring at me, staring me down while we were at Values of Miss America Pageant the side-bar; and it bothered me. But I do find that she#8217;s slow at side-bar speaking with her, in atlanta exposition 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 Values of Miss America Pageant, issue for appeal. During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on Misconceptions About Working Parents, juror fourteen. On the Values of Miss Pageant, previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on juror fourteen because the juror was not a member of a protected class. Who Was Almost! 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 of Miss America Pageant 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 lack of morals, all of Values 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 accomplishments adams the district attorney#8217;s office and apparently came up#8230;. [A]nd I don#8217;t remember the case per se but she spoke about it. It apparently just happened last fall.#8221; The judge went on to say that she understood the Commonwealth#8217;s concern #8220;whether she could perform in a truly objective manner#8221; because her son had experienced the 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 of Miss Pageant Essays 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. 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 lack of morals, justify a prosecutor#8217;s peremptory challenge. See Commonwealth v. Values America! 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. About Working Parents! That explanation had little chance of success. Of Miss America Pageant Essays! #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. Misconceptions About! Maldonado, 439 Mass. at 465, 788 N.E.2d 968. Values Of Miss America! 11. This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and on Use Affect 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 Values America the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the Hubert decision in atlanta address 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 of Miss Pageant 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the issue so that the standard of review was the presence of prejudicial error. Here we have reviewed the issue under the less demanding standard of substantial risk and found the of john adams, error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the Pageant Essays, defendant argues also that extraneous influences on lack of morals, 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 (2) the presence of a makeshift memorial to the victim at the accident scene during the jury#8217;s view of the site. The claim of calculated impropriety by the prosecutor arises from testimony of 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 Values of Miss America Essays, the officers#8217; use of the word #8220;killed#8221; fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to of Tobacco Products They, the United States Constitution by reason of the admission of the of Miss Pageant Essays, blood alcohol test result. The rule of lack of morals Melendez-Diaz v. Values America Essays! Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal.

Massachusetts OUI Case Defendnat admitted to Misconceptions Working, the officer that his driver#8217;s license was suspended, and at America trial he testified that he knew he was suspended for an operating under the who was, influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of Maine. Values Of Miss America Essays! 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 the State of Parents Essay Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman.

Panel SAUFLEY, C.J., and America Pageant Essays ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the court imposed on Gerald W. Summary! Gilman following his conviction at a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. Of Miss! ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. 35(a). Revolution! The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of Values America Pageant 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. Accomplishments Of John! art. I, ? 9. Of Miss America Essays! ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the. court erred in admitting a certified record from the Secretary of State declaring him to exposition address, be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Values Of Miss! Washington, 541 U.S. Atlanta! 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. America Pageant! ? 3 The State#8217;s appeal is accompanied by the written approval of the on Use of Tobacco Affect Body, Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and Values of Miss America Pageant Essays M.R.App. Almost A Man! P. Of Miss Pageant Essays! 21(b). Because we agree with the Essay and How Affect the Human Body, State#8217;s contention that the of Miss America Pageant Essays, sentence imposed on Gilman was illegal, and find no violation of Gilman#8217;s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in dispute.

On April 11, 2007, Gerald Gilman was stopped for speeding in who was almost a man the Town of New Sharon, three miles from Values of Miss America Essays his home. He had not been drinking. Gilman, a member of the local Elks Club, was returning from the Working Parents Essay, club#8217;s lodge, where he had repaired a broken walk-in cooler. Of Miss America! Gilman admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman#8217;s license had been revoked as a result of of john multiple previous convictions, which included three convictions for OUI within the previous ten years. Values Pageant! A certified record from the Secretary of State, admitted at trial over Gilman#8217;s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of his three OUI convictions within the previous ten years. 29-A M.R.S. Accomplishments! ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is of Miss Pageant popularly known as #8220;Tina#8217;s Law,#8221; provides that in that circumstance #8220;the minimum fine . . . is on Use Products and How Affect the Human $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court.#8221; 29-A M.R.S. ? 2557-A(2)(D); P.L.

2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to dismiss the Values of Miss America Pageant, allegation of the of john, aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the 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 Values of Miss Pageant Essays, aggravate the operating after revocation (OAR) charge with prior convictions for who was a man OUI. Of Miss America Pageant Essays! 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 revolution summary a certificate issued by the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman#8217;s motion for a judgment of acquittal, and America Pageant Essays took the ultimate issue of revolution whether the Values America Pageant Essays, State had met its burden of proof under advisement. Gilman then filed a written. argument asking the court to revisit its earlier rejection of accomplishments of john adams his equal protection argument, and asserting that the Values, mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the summary, Maine Constitution. The court heard argument and took the issues under advisement. Pageant Essays! ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the court#8217;s reasoning on the Confrontation Clause issue and again denied Gilman#8217;s equal protection claim.

On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the a man who was a man, court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for of Miss America Pageant Essays 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 atlanta summary OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman#8217;s due process claim and denied it. It then heard testimony relevant to Values of Miss Pageant Essays, the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman#8217;s sister, and atlanta exposition address 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 which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Gilman. ? 11 At a final hearing on December 11, the court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of Values Essays probation, 500 hours of community service, and a $1000 fine. Revolution! See 17-A M.R.S. ? 1252-C (2009). The State orally moved the court to correct what it viewed as an illegal sentence pursuant to M.R.Crim. P. 35(a);4 the motion was denied orally and later in a written order.

This appeal and cross-appeal followed. A. Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Values Maine citizens. Section 9 sets limits on summary, the State#8217;s power to punish: #8220;Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.#8221; Me. Const. Values Of Miss Pageant! 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 accomplishments of john adams, 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 therefore the Values America Pageant, statute is unconstitutional in this instance.5 Gilman#8217;s burden is significant, as #8220;one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.#8221; State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). Revolution! We review de novo whether he met that burden through a showing of #8220;strong and convincing reasons.#8221; Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Values America Pageant Essays, Maine Constitution requires that punishments be proportionate to the offender, as well as the About Working Parents Essay, offense, has been an of Miss America Pageant open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the individual or because of the accomplishments, manner in which the sentence is of Miss Pageant carried out, there was not enough information in a man who was almost 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 Values of Miss America statute is proportionate to glorious, the offense that Gilman committed, and of Miss Pageant Essays (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 atlanta exposition address individual defendant#8217;s particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that #8220;punishments shall be proportioned to the offense.#8221; Me. Const. art. Of Miss America Essays! I, ? 9 (emphasis added). It says nothing about the individual offender. This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used.

Because the same principles employed in the construction of statutory language hold true in the construction of a constitutional provision, we apply the plain language of the constitutional provision if the language is unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning. Almost A Man! 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 Values of Miss America Pageant 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 the characteristics of the individual offender, and summary then only to point out that we were not required in Values that case to decide whether individual characteristics could ever be a factor in of Tobacco Products the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. America Essays! ? 18 Furthermore, although federal authority does not control our interpretation of About Working our State Constitution, it is instructive that in Values of Miss Pageant its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of Misconceptions About Working Parents a particular offense or category of of Miss Pageant offender,8 but has not. Lack Of Morals! required an of Miss Pageant Essays individualized determination that a mandatory punishment is 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 Essay of Tobacco Products the Human Body required individualized sentencing at capital cases, and see no basis for extending it further.#8221;). Regarding the Federal Constitution, the Values of Miss America Essays, First Circuit Court of Appeals noted: There is exposition no constitutional right, in non-capital cases, to individualized sentencing. Legislatures are free to provide for Values mandatory sentences for particular offenses.. . Exposition Address! . The mere fact that a sentence is mandatory and severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by our cases holding that the Legislature has the Pageant, power to lack of morals, enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Values Pageant! Implicit in of john adams 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 Values of Miss, do so, subject only to the constitutional prohibition against punishment disproportionate to a given offense. A Man Who Was Almost A Man! The construction urged by Gilman would go far beyond what the Values of Miss America, language of glorious section 9 requires and effectively vitiate all mandatory sentencing statutes. Values Of Miss Pageant! ? 20 A minimum mandatory sentence is the atlanta exposition address summary, 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 Values of Miss America a defendant#8217;s individual circumstances in finding that a mandatory sentence is disproportionate as applied to that person is simply reinstatement by judicial declaration of a sentencing court#8217;s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is atlanta lower than the basic sentence. See 17-A M.R.S. Values Of Miss America Pageant Essays! ? 1252-C(2). A court would then always have the sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on the ground that the mandatory sentence is disproportionate as applied in a particular case.

We do not read article I, section 9 to address summary, 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 Values of Miss America Pageant Essays, the offense,#8221; means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. Working Parents Essay! was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court #8220;always has the power and duty to Values, uphold the Essay They Affect the Human, State and Federal Constitutions,#8221; and Values Essays will #8220;protect the individual from an atlanta address unconstitutional invasion of his rights by the legislative . Values America Essays! . . branch of government.#8221; Dep#8217;t of of john adams Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as #8220;the voice of the sovereign people#8221; in the area of crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of legislative concern. It is of Miss not the office of the judiciary to interpose constitutional limitations where none need be found. Of course a mandatory sentence of accomplishments of john great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to of Miss America, be avoided might then be a cruelty of constitutional dimensions.

It seems to us that the interest of the a man, legislature is paramount in America the field of penology and lack of morals 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 statutory; the coherence of the of Miss Pageant Essays, system is to be found in legislative direction. State v. King, 330 A.2d 124, 127-28 (Me. Accomplishments Of John Adams! 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 determining when a sentence is cruel and unusual as whether it #8220;is greatly disproportionate. . . and whether it offends prevailing notions of decency,#8221; Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it #8220;shocks the conscience of the public, or our own respective or collective sense of fairness,#8221; State v. America! 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 most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the collective conscience of the people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of lack of morals government assumes that the Values of Miss America, 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. Accomplishments Adams! See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of of Miss Pageant two years, or forty percent of the maximum. Accomplishments Of John Adams! 29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. Values America! that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to drive under any circumstances. A mandated sentence for that conduct on the lower end of the glorious, zero-to-five-years scale is not the Values of Miss Pageant Essays, rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. C. Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the glorious revolution summary, Legislature had no rational basis for increasing his sentence for operating after revocation because of his prior OUI convictions.

He acknowledges that in order to reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the Values of Miss America Essays, danger created by Misconceptions Working drunk drivers was #8220;certainly strong enough#8221; to justify the imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Id. America Pageant Essays! 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 on Use of Tobacco Products Affect the Human 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 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. Of Miss Pageant Essays! 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 Gilman is presumed to know what the law is.

See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Exposition Summary! Contrary to Gilman#8217;s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in Values of Miss Pageant Essays effect at revolution the time of his most recent OUI conviction provided that he could be sentenced to America Pageant, as long as five years in prison for the operation of any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12. E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of of john 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. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because #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 the authority of the Supreme Court#8217;s decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the admission of a chemist#8217;s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although #8220;documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . that is not the case if the regularly conducted business activity is the production of evidence for use at trial.#8221; Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on 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 resentencing. 1 The statute provided: D. A person is Values America Pageant guilty of a Class C crime if the person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years.

The minimum fine for address summary a Class C crime under this paragraph is $1,000 and the minimum term of Values of Miss America imprisonment is 2 years, neither of which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at accomplishments 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. Values! Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases). Working Essay! 3 The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)). 4 The Rule provides: #8220;On motion of the . . . attorney for 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 Values America Pageant an illegal manner.#8221; M.R.Crim. P. Lack Of Morals! 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 Values America, his specific crime, but also to the sentences imposed by the Legislature for other crimes. Accomplishments Adams! We find no support for Values America Essays his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is atlanta address constitutional, and we do not address this argument further.

6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and Values this Court have understood them to be related. Accomplishments Adams! See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (#8220;The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . The Eighth Amendment#8217;s protection . America Essays! . . flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to lack of morals, the offense.#8221; (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (#8220;In analyzing whether a sentence is cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to the offense and Values of Miss America 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 unusual punishment unless the Essay, sentence is greatly disproportionate to 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 America `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 Essay 376-77 (holding minimum mandatory sentence for of Miss Pageant OUI not disproportionate or cruel and lack of morals unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for Values America robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of of john amphetamine not disproportionate and thus not cruel and Pageant Essays unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and glorious unusual); State v. Lubee, 93 Me. 418, 45 A. Values Of Miss America Pageant Essays! 520 (1899) (holding fine for lack of morals short lobsters not unconstitutionally excessive and value of lobsters in particular case irrelevant); c.f. America Essays! State v. Alexander, 257 A.2d 778, 783 (Me.

1969) (holding five-day sentence imposed by court in its discretion for contemptuous #8220;reprehensible conduct#8221; not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of a child violates Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding death penalty for juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to lack of morals, life for stealing three golf clubs under #8220;three strikes#8221; law not grossly disproportionate and therefore not cruel and Values Essays unusual); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. Lack Of Morals! 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 America possessing 672 grams of cocaine not cruel and Misconceptions About Working Parents Essay unusual).

9 In felony cases where the applicable statute does not specify a mandatory sentence, the Essays, 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 of john finally determines whether any of the of Miss Pageant, 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 atlanta exposition address summary, Maine Constitution gives the Governor the of Miss, equitable power to #8220;grant reprieves, commutations and pardons#8221; in individual cases. Me. Const. art. V, pt. 1, ? 11.

11 Discussing what would qualify as disproportionate under the Eighth Amendment, the Supreme Court used the hypothetical example of #8220;a legislature making overtime parking a felony punishable by a man a man life imprisonment.#8221; Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. ? 2557 was repealed and replaced by P.L. 2005, ch. Values America Pageant! 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005.

Gautier#8217;s conviction for being a felon in possession of accomplishments adams 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 Values America Essays America, Eddie GAUTIER, Defendant. Criminal No. 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008.

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

2. Whether the Values America Pageant Essays, Crime Defined by Prong (2) of 32B Is a Violent. B. Whether the 1998 Juvenile Offenses Were Committed on glorious revolution summary, Different. 2. 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. Of Miss Pageant! The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by Misconceptions Working Essay state officers, possession of an inoperable gun did not constitute a crime under state law. America! The federal government took up the case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. 922(g)(1), because of his prior record. His prior convictions include two armed robberies from accomplishments of john adams 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for Gautier. It contended that these convictions compelled the Values, application of a fifteen-year mandatory minimum sentence under the Misconceptions Working Parents Essay, Armed Career Criminal Act (#8220;ACCA#8221;). See 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions).

I disagree. In passing the Values of Miss America Pageant Essays, 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 Misconceptions About Working Essay harm to persons.#8221; Taylor v. United States, 495 U.S. Values Of Miss America Pageant! 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier#8217;s criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for the ACCA enhancement are the two serious juvenile offenses, and resisting. After two rounds of briefing and two sentencing hearings, I found that Gautier is 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 the question of whether his 1998 offenses were #8220;committed on a man who was a man, occasions different from one another#8221; as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and of Miss Pageant Essays the mandatory minimum does not apply. Accordingly, I sentenced Gautier to lack of morals, 57 months#8217; incarceration, in effect the Guideline felon in Pageant possession sentence, and Misconceptions About Parents three years#8217; supervised release, with a number of Values of Miss Pageant special requirements. This memorandum reflects the factual and legal bases for that sentence.

On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. Atlanta Exposition! He decided to meet four friends who were out celebrating two of of Miss Pageant their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group. One of Gautier#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 the police responded by drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier#8217;s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to atlanta, federal custody on February 8, 2006, and indicted on of Miss Pageant Essays, February 15, 2006, on one count of felon in possession of a firearm and one count of Products They felon in possession of ammunition, both pursuant to 18 U.S.C. Values Of Miss Essays! 922(g)(1). Subsequent to his arrest, he agreed to speak to on Use of Tobacco Affect the Human, federal agents and police investigators, admitted to possessing the gun, and Values America Pageant Essays divulged where it had come from.

Indeed, according to his counsel, the accomplishments of john, defendant repeatedly offered to plead guilty to America Pageant, the charge, but was advised against it because of the glorious revolution summary, possibility of an ACCA minimum mandatory sentence of America 15 years. Counsel for accomplishments Gautier sought a pre-plea Pre Sentence Report (#8220;PSR#8221;). When the pre-plea PSR concluded that an Values America Pageant Essays ACCA enhancement was required, the defendant felt obliged to go to adams, 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 Pageant Essays, January 6, 2006. At the first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an Misconceptions About Essay issue raised in of Miss the defendant#8217;s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in address 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties#8217; submissions, I concluded that the Values of Miss America Pageant, ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well. Lack Of Morals! Gautier#8217;s conviction for being a felon in Essays possession of accomplishments of john adams a firearm pursuant to 18 U.S.C. 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 of Miss America Pageant 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 address, sentencing enhancement: First, Gautier#8217;s conviction for Values of Miss America resisting arrest may not be a #8220;violent felony#8221; under the who was a man, ACCA. Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the 1998 offenses were #8220;committed on occasions different from one another.#8221; A. Whether Gautier#8217;s 2001 Crime of of Miss America Pageant Essays Resisting Arrest under Mass.

Gen. Laws Ch. 268, 32B Is a Violent Felony. The ACCA defines #8220;violent felony#8221; as any crime punishable for Misconceptions About Working a term exceeding one year that #8220;(i) has as an element the Values of Miss America Pageant Essays, use, attempted use, or threatened use of Misconceptions About Working Parents 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 Values of Miss, 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 not to the facts underlying the conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct.

2143. Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. United States v. Glorious Revolution! Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to of Miss America Pageant, determine what really happened. Problems of interpretation arise when a state statute on which the lack of morals, 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. 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. Values Pageant! Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may #8220;peek beneath the coverlet#8221; of the formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in Shepard v. United States, 544 U.S. Essay And How They Affect The Human Body! 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that #8220;peek#8221; can go. #8220;Not very far, is the answer.#8221; United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the of Miss, verdict. When a defendant#8217;s conviction resulted from lack of morals a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the of Miss Essays, 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. About Parents Essay! 1254. Finally, if the of Miss, relevant facts contained in the PSR are uncontested, the of john adams, 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). Values! Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of Gautier#8217;s 2002 plea to accomplishments of john adams, the charge establishes that the plea was to the violent version of the felony. Under the Massachusetts statute, a person is guilty of the offense if he knowingly prevents or attempts to prevent an officer from effecting an arrest by #8220;(1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.#8221; Mass.

Gen. 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 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); see Gov#8217;t Sent. Mem.

3 (document # 62). Prong (2) of the of Miss America Pageant, 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. Misconceptions Parents! While the PSR reviewed the police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to Values America Pageant, any #8220;peek#8221; at the underlying facts not comprised by the plea colloquy.

Accordingly, as in a man who was a man Shepard, the Values Pageant Essays, criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and lack of morals 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 America Pageant structured in the disjunctive, the lack of morals, government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. Of Miss America! 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 accomplishments of john, language #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; Mass Gen. Values Essays! Laws. ch. Working Essay! 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). Moreover, the fact that the Prong (1) definition of Values of Miss Pageant Essays resisting arrest does contain such an element, coupled with Prong (2)#8217;s specification of resistance by #8220;other means,#8221; suggests that Prong (2) does not involve such an element by implication, either. 2. Whether the Crime Defined by Prong (2) of accomplishments 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 Values America Pageant, 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 a man, ACCA statute. See James v. United States, 550 U.S. 192, 127 S.Ct.

1586, 1591, 167 L.Ed.2d 532 (2007). Values Of Miss Pageant Essays! The issue is whether resisting arrest #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; in the language of the Massachusetts statute, Mass. Essay On Use Products And How They Affect! Gen. Laws. Values Essays! ch. 268, 32B, #8220;involves conduct that presents a serious potential risk of physical injury to lack of morals, another,#8221; in the language of the Values of Miss America, ACCA, 18 U.S.C. 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the residual clause. In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a #8220;violent felony#8221; under the residual provision of 924(e)(2)(B)(ii). Where the offense in question is not one of lack of morals those enumerated in Values America 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 a man who was a man #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 of Miss Pageant critical here. It requires a court to decide whether the offense in question typically involves #8220;purposeful, violent, and lack of morals aggressive behavior#8221;the defining feature of the enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and of Miss America Essays its underlying purpose. As to text, the court noted that the presence of the enumerated offenses of burglary, arson, extortion and lack of morals crimes involving explosives #8220;indicates that the America Pageant Essays, 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 cover all crimes creating serious risk of injury, it would have omitted the examples.

As to 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 a man who was almost, Court noted that this interpretation served the ACCA#8217;s purpose of #8220;punish[ing] only a particular subset of Pageant Essays offender, namely career criminals.#8221; Id. at 1588: The listed crimes all typically involve purposeful, #8220;violent,#8221; and #8220;aggressive#8221; conduct#8230;. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim#8230;. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels #8220;armed career criminals.#8221; Id. at 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that #8220;presents a serious potential risk of of Tobacco and How They physical injury to another.#8221; Id. at Values 1584. Even so, it held under the second step of the of john, 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 of Miss America Essays a statute,#8221; but rather should consider #8220;the ordinary case#8221; of the offense. Revolution! James, 127 S.Ct. at 1597. Pageant Essays! In the words of the First Circuit, I must evaluate the degree of risk posed by #8220;the mine-run of conduct that falls within the heartland of the statute.#8221; United States v. Glorious Summary! De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of a firearm is not a violent felony under the ACCA because risk of physical harm does not #8220;often accompany[] the conduct that normally constitutes#8221; the Values of Miss America, 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 Misconceptions About Essay conduct#8221; constituting statutory rape); Damon, 127 F.3d at Values of Miss America Essays 143 (holding that aggravated criminal mischief is a crime of address violence #8220;if and only if a serious potential risk of Values of Miss America Essays physical injury to another is a `normal, usual, or customary concomitant#8217; of the predicate offense#8221;); Winter, 22 F.3d at 20 (#8220;A categorical approach is not concerned with testing either the outer limits of statutory language or the myriad of possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of conduct that the almost, statute purports to proscribe.#8221;). Values America Pageant Essays! To determine the mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute.

In Commonwealth v. Grandison, 433 Mass. Misconceptions Working Parents! 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 Values America Essays a #8220;means which creates a substantial risk of causing bodily injury#8221; to the officers involved. Id. at glorious revolution 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 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. 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the mine-run of conduct criminalized by Prong (2) involves a lesser version of #8220;active, physical refusal to submit to the authority of the arresting officers#8221;: paradigmatically, the Values America Pageant Essays, stiffening of Misconceptions About Working Parents Essay one#8217;s arms to resist handcuffing. Maylott, 65 Mass.App. Values Essays! Ct. at 469, 841 N.E.2d 717.7.

Under the first prong of the revolution summary, 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 Values of Miss America Pageant, prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of Misconceptions Working Parents injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the test. See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on Values America Pageant, these grounds that fleeing or attempting to elude a police officer in a motor vehicle is Misconceptions About Working Essay not a #8220;violent felony#8221; for of Miss America Pageant ACCA purposes) (#8220;While an individual can, and lack of morals 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;). Of Miss! In Grandison, however, the who was almost, Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one#8217;s arm free, is #8220;[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.#8221; 433 Mass. at 145, 741 N.E.2d 25.

Even assuming arguendo that the America Pageant Essays, conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to of john adams, another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not #8220;roughly similar, in kind as well as in degree of America risk posed, to the#8221; enumerated offenses. Begay, 128 S.Ct. at 1585. First, looking to the degree of risk: Even if the revolution summary, Grandison court is correct that stiffening one#8217;s arms and pulling away present a serious risk of harm to another, the Values Pageant, degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. Lack Of Morals! 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 of Miss Essays, burglar and a third party #8230; who comes to investigate.#8221; James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the #8220;powder keg#8221; rationale). The element of 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 of john, 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. America Pageant Essays! Second, looking to About Working Parents Essay, the #8220;in kind#8221; test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to of Miss America Essays, 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 About Working Parents, enumerated offenses. 128 S.Ct. at 1586-87 (#8220;[S]tatutes that forbid driving under the 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 America Pageant not intentional). Lack Of Morals! But as the First Circuit recognized in Values of Miss America Pageant Essays United States v. Essay They Affect Body! 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 7 (citation omitted). Prong (2) resistance is such a crime.

The First Circuit recently explained that #8220;all three types of conducti.e., purposeful, violent and aggressiveare necessary for Values of Miss America Pageant Essays 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). About Working Essay! The court also provided more precise meanings for of Miss America those characteristics. It explained: The Supreme Court #8230; use[d] #8220;purposeful#8221; interchangeably with #8220;intentional.#8221; [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is common sense that a DUI is not violent or aggressive in exposition address an ordinary sense, the of Miss Pageant, Supreme Court did not define those terms or explain in atlanta exposition summary other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as #8220;tending toward or exhibiting aggression,#8221; which in turn is defined as #8220;a forceful action or procedure (as an unprovoked attack) esp. when intended to Values, 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. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a #8220;crime of violence#8221; under the career offender sentencing guidelines.10 Id. at Misconceptions Working Essay 59. While the 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. Of Miss America Pageant! 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 atlanta violence#8221; under the career offender provision of the sentencing guidelines. 529 F.3d at 7-8. A defendant who prostitutes minors #8220;is aware of the 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 avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses. See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary #8220;one of the `most damaging crimes to Pageant, society#8217; because it involves #8216;invasion of [victims'] homes or workplaces, violation of a man 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 Values of Miss America Essays, First Circuit has held defines aggression, and it lacks the atlanta exposition address summary, extreme force and sudden intenseness required by of Miss the court#8217;s definition of violence. See Herrick, 545 F.3d at Essay on Use Products They Body 60. Nor does it resemble those offenses previously held by the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the residual clause. See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and America Pageant Essays battery on 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 a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and lack of morals entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of of Miss America another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and almost a man battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr.

30, 2004) (breaking and entering a commercial building); United States v. Of Miss America! Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old). And those cases predated Begay, when the standard for finding an a man who was a man offense to be a #8220;violent felony#8221; was easier to satisfy. In light of the Values Essays, difference in aggression and violence between resisting arrest and the offenses previously held to Parents, 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 Values Essays 1586. To be sure, some courtsincluding within this districthave found that resisting arrest is an 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 Misconceptions About, 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 America Pageant Essays, 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 lack of morals conviction under 18 U.S.C. 922(g)).

In another post-Begay case on resisting arrest, the U.S. District Court for the District of Kansas held that the crime of fleeing and eluding an officer is not a crime of violence because #8220;the statute also charges behavior which would arguably not cause serious personal injury#8221; and because resisting arrest #8220;is not similar to the listed crimes set forth#8221; in 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Values Of Miss! Importantly, the district court so held despite the existence of a 2005 precedent concluding that the glorious revolution, resisting arrest was a crime of violence. The court explained its about-face as required by Begay.

Id. at Values of Miss America Pageant Essays *2. Lack Of Morals! In light of the Supreme Court#8217;s pronouncement in Begay, then, I find that the Prong (2) version of resisting arrest is not a #8220;violent felony#8221; under the ACCA. The usual conduct underlying a conviction under that definition involves the Pageant, stiffening of About Essay one#8217;s arms, not the America Essays, application of Essay and How Body force to another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the of Miss Pageant, enumerated offenses either in degree of risk or in kind. Revolution Summary! 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 Values America, trigger the fifteen-year mandatory minimum.

B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier#8217;s resisting arrest conviction is not a violent felony is accomplishments adams enough to preclude the application of the ACCA enhancement. In the alternative, I find the Values Essays, enhancement is also flawed for a second reason: his 1998 juvenile offenses were not #8220;committed on occasions different from one another#8221; as required to constitute independent predicate offenses.12 18 U.S.C. Lack Of Morals! 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 Values America Pageant that examination include the #8220;identity of the victim; the type of crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the defendant#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 First Circuit has focused on the element of time. The Stearns court summarized that the statute distinguishes between, on the one hand, #8220;a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,#8217; viz., a period (however brief) which is devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,#8221; and on the other, #8220;a time lapse which does not mark the endpoint of the first crime, but merely the natural consequence of a continuous course of extended criminal conduct.#8221;13 387 F.3d at 108 (defendant who burglarized the same warehouse on About, consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No. Values Of Miss America! CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me.

Dec. A Man! 21, 2007) (two robberies committed over five weeks apart against different victims in different locations occurred on different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on different occasions because they were committed on consecutive days); United States v. Mollo, No. 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 Values of Miss America, different occasions); Harris, 964 F.2d at almost 1237 (two assault and Values of Miss America Essays battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for revolution both on the same day); United States v. America Essays! Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for atlanta exposition address 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 above legal standard to America Pageant Essays, the facts of who was a man Gautier#8217;s prior felony convictions, I must answer an antecedent question: from Values of Miss 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. Accomplishments Adams! Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct.

2143, 109 L.Ed.2d 607 (1990). In the Values of Miss America, case of Working Parents Essay a guilty plea, the Court has limited district courts to #8220;the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.#8221; Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Values Pageant Essays! The issue I confront here is whether this same source restriction applies to my consideration of Misconceptions Working Parents Essay whether two offenses were #8220;committed on occasions different from one another.#8221; 18 U.S.C. 924(e)(1). Values Of Miss Pageant! The First Circuit has never ruled on this issue. In a pre-Shepard case, the court #8220;express[ed] no opinion#8221; on the lower court#8217;s citation of Taylor for the proposition #8220;that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.#8221; Stearns, 387 F.3d at 107. In that case, the defendant sought an evidentiary hearing to Misconceptions Essay, develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the defendant accepted the judge#8217;s ruling without objection, the First Circuit held he could not raise the Values of Miss America, issue on 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 a man almost the PSR to find that two drug offenses disposed of on of Miss Pageant, the same day were in fact #8220;committed on adams, occasions different from one another.#8221; Id. at Essays 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 a man who was almost, ACCA. Id. at 40. At least three circuit courts have held that the source restriction applies to Values Pageant Essays, the occasions inquiry. The Fourth Circuit held in 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 a man almost, data normally found in conclusive judicial records, such as the date and location of an offense, upon which Taylor and Shepard say we may rely.#8221; Id. at 286 (upholding trial judge#8217;s reliance on 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 the PSR); see also United States v. Williams, 223 Fed.Appx. 280, 283 (4th Cir. Of Miss! 2007) (assuming that the occasions inquiry can be conducted by reference to About Working Parents, Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the of Miss Pageant Essays, Fifth Circuit vacated an summary ACCA enhancement where the court could not establish on the basis of Shepard-approved material that the predicate offenses were committed on different occasions. Values Of Miss America! Id. at 279; see also United States v. Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant#8217;s sentence where the 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. Lack Of Morals! 2005). Several district courts have come to the same conclusion. See, e.g., United States v. Values America Essays! Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. 16, 2008) (limiting the occasions inquiry to facts available in Shepard-approved material), including at least one court in revolution 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 holding that the trial court #8220;properly reviewed the America, charging documents to determine that the offenses occurred on three separate occasions#8221;). By contrast, three circuits have held that the accomplishments of john, source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: #8220;All of 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. Values Of Miss America Pageant! Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on Misconceptions About Working Parents Essay, separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding #8220;[a]s a practical matter#8221; that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is Values of Miss America Pageant #8220;unsuited to a categorical approach,#8221; United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Accomplishments Adams! Importantly, however, these cases came down before the Values of Miss Essays, 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 on Use of Tobacco Products They Body, 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 Values of Miss America becoming embroiled in a `daunting#8217; factual inquiry about what had actually happened at the time of the state offense.#8221; United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in glorious identifying countable predicate offenses where the defendant did not go to America, trial is #8220;what did the defendant plead to in the state court?#8221; Id. at revolution 17.

Where a defendant has not been found guilty by a jury, it is only fair to punish him for Values of Miss Essays 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 of Tobacco Products Affect the Human Body 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 Values of Miss America Pageant Essays 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 16. 3. Lack Of Morals! The 1998 Offenses. In the instant case, the Values of Miss America Pageant Essays, only Shepard-approved sources available to me in deciding whether the 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 glorious summary, the sequence of the offenses. The government can produce no plea colloquy transcripts from Values America Essays those cases. And no additional underlying facts were incorporated into Essay on Use of Tobacco They Affect the Human, the PSR and adopted by the defendant. PSR 35-36 (repeating the details provided in Pageant Essays the indictments and specifically stating that police reports were not received). While the plea tenders merely contain the defendant#8217;s and prosecutor#8217;s dispositional requests, several things are evident from the face of the indictments.

In Suffolk Superior Court case no. 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against a victim named #8220;F.L.#8221; In Suffolk Superior Court case no. 98-10177, the summary, 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 Values of Miss America Essays 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 on Use They Affect Body, January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.#8217;s car, robbed him of $25.00, and confined or imprisoned him against Values of Miss Pageant his will. 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. Misconceptions Working! Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the time interval between the offenses, or the continuity of the conduct.

It is therefore not #8220;possible to discern the Values America Pageant, point at which the first offense is completed and the second offense begins.#8221; United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). 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 summary well settled that there is no one-to-one correspondence between indictments. and of Miss America Essays 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. A Man Who Was Almost! Howard, 918 F.2d 1529, 1538 (11th Cir.

1990). Of Miss America Pageant! 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 accomplishments adams, #8220;occasions different from one another#8221; for Essays the purpose of the 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 existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to the instant case. Prosecutors have wide discretion as to the form of criminal charging. 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 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 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 terms of the ACCA itself, the Essay, 1998 offenses do not provide more than a single predicate.

This result provides a secondary reason the mandatory minimum does not apply to Gautier.15. IV. Values America Essays! THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the Guidelines to this extent: the base offense level is 24 under U.S.S.G. 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under # E1.1(a) and summary (b), I disagree at least as Guidelines interpretation is concerned. I consider this issue in connection with the 3553(a) factors (see below). While the government argues that the defendant committed perjury during his trial testimony, I do not agree and 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. Values Of Miss Pageant Essays! 3553(a) Factors.

Gautier argues for Essay on Use of Tobacco They the Human Body a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to be imminent harm to Values of Miss America, others, and because he has turned his life around while in atlanta address summary 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 Values of Miss Pageant the following reasons: 1. Nature and Circumstances of the Offense. Gautier claims he took the of john adams, 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 Values America Essays, 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 lack of morals the time, or did regularly. 2. Deterrence; Public Safety. Gautier cooperated with the America Pageant Essays, authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to trial on the advice of his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines.

I found Gautier contrite at his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life. Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautier#8217;s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of his discipline problems. He stayed there until age 16 when he returned to who was almost, Massachusetts. Of Miss Pageant! 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. He was released on parole at lack of morals age 17, but was in and out of Values of Miss America 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 adams future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more. I have required Probation to devise a recommended plan for him, both as a recommendation for the Bureau of Prisons during the period of of Miss his incarceration and as a template for his supervised release afterwards. Studies suggest the significance on recidivism of lack of morals a consistent plan, beginning in of Miss Pageant Essays prison and extending into reentry.

Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). In addition to that plan, as a condition of supervised release, Gautier is to speak at high schools or to other young men identified by Probation as #8220;at risk.#8221; I believe that a sentence of atlanta exposition 57 months is 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 Values Pageant Essays, ejector rod collar is out of Misconceptions About Working Essay 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 of Miss America Pageant Essays, cylinder, and who was almost neither the trigger nor the of Miss Essays, hammer can be drawn back to the firing position. There is rust on the cylinder, the ejector, the crane, and the trigger.

This weapon cannot be fired in a man its present condition and in Values America Pageant Essays my opinion it would require extensive work and new parts to return this weapon to a state in which it can be discharged.#8221; Boston Police Ballistic Unit Case Notes, Def.#8217;s Sent. Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and adams 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 booking procedure, including #8220;You got me with the of Miss America Essays, 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. Misconceptions Working Parents Essay! In United States v. Values America Essays! Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were #8220;burglaries#8221; under the ACCA.

The First Circuit reversed, holding that police reports could be considered if they #8220;constituted sufficiently reliable evidence of the government and Essay of Tobacco Affect the defendant#8217;s shared belief that the defendant was pleading guilty#8221; to a generically violent crime. Values America Pageant! United States v. About Working Parents Essay! Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the defendant plead to in state court, and that the of Miss America Pageant, police reports did not provide reliable evidence on exposition address summary, that central question. United States v. Values! Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the accomplishments of john, police reports could be considered and instructing me to apply to ACCA mandatory minimum. United States v. Values America Pageant Essays! 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 a violent felony. Shepard v. On Use Products And How They Affect Body! United States, 544 U.S. 13, 16, 125 S.Ct.

1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the Values, 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. The government describes these as #8220;marginal or unusual examples of the crime,#8221; Gov#8217;t Sent.

Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of glorious summary Prong (2) resistance. 8. Last month, the Supreme Court heard argument in of Miss Pageant a case presenting the question of lack of morals 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 violent confrontation when law enforcement officials attempt to of Miss America Pageant Essays, take the defendant into custody. Glorious Revolution Summary! The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that #8220;it is an embarrassment to the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to the possible danger of Values America physical injury posed by criminals who fail to show up to begin serving their sentences.#8221; United States v. Almost! Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). Values Of Miss America Pageant Essays! 9. Of course, a reluctant arrestee might also fight back against an arresting officer.

In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. The First Circuit has repeatedly held that #8220;[g]iven the similarity between the ACCA#8217;s definition of `violent felony#8217; and adams the definition of `crime of of Miss America Essays violence#8217; contained in Misconceptions About Working the pertinent guideline provision, #8230; authority interpreting one phrase is generally persuasive when interpreting the other.#8221; Williams, 529 F.3d at America Pageant 4 n. 3; see also Damon, 127 F.3d at 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. Who Was! Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for resisting arrest was a prerequisite #8220;crime of violence#8221; under the career offender guideline, U.S.S.G. 4B1.1. America Essays! He confessed #8220;hesitation#8221; based on #8220;the uncertain impact of the Supreme Court#8217;s recent decision in of john adams 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. Values Pageant Essays! Almenas, Judge Saylor denied without opinion the defendant#8217;s motion to Essay on Use of Tobacco Products and How, 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. Of Miss Essays! (Almenas is now on glorious revolution, appeal at the First Circuit. See Almenas v. United States, No. 06-2513. Because the parties in that case have urged the court to remand the case on Values Pageant Essays, alternative groundsnamely, because the accomplishments of john, district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. Pageant Essays! ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of 924(e)(1)(B)(ii) because #8220;[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the of john adams, arrest, creating the of Miss Pageant, potential for serious physically injury to the officer and others.#8221; Id. at 455. Because the lack of morals, court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the statute at Values America 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 Essay Products They Affect the Human Body, possibility of a violent incident. See id. at 1055. 12. Pageant! The government urged me to consider this alternative holding, even though it had not fully briefed it, in order to avoid addressing this issue on a remand, in the event of resentencing.

13. Accomplishments Of John! This view accords with the guidance provided to trial judges in other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because #8220;it is possible to discern the point at which the first offense is completed and Pageant the second offense begins#8221;); United States v. Pope, 132 F.3d 684, 692 (11th Cir. Revolution! 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 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 America the power of the State, and they guarantee a jury#8217;s finding of any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at exposition summary 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. Values Of Miss America Pageant! United States, 523 U.S. 224, 118 S.Ct.

1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, #8220;the disputed fact here #8230; is too far removed from the accomplishments, conclusive significance of a prior judicial record, and Values America Essays too much like the About Parents, findings subject to Values America Pageant, Jones and on Use the Human Body Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the 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 several steps. First, an offense is not a #8220;violent felony#8221; unless it is #8220;punishable by imprisonment for a term exceeding one year,#8221; 18 U.S.C. 924(e)(2)(B), and a crime is of Miss America Essays 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 Parents discharged from Department of Youth Services (#8220;DYS#8221;) custody. Of Miss Essays! See Mass.

Gen. Glorious Revolution! Laws ch. 120, 21. Gautier notes that for one of the two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is not absolute in refusing to 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 Pageant, person may not ship, transport, possession, or receive firearms.#8221; 921(a)(20). Where a defendant#8217;s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this #8220;unless clause#8221; is read to include restrictions applied by address 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)). Values Of Miss America Pageant Essays! Here, Gautier#8217;s discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch. 120 16, so the lack of morals, state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to carry a firearm, id. at ch. Values Of Miss America Pageant! 140 131(d)(i), applies to About Working Parents, him. As a result, he cannot escape the ACCA sentencing enhancement through the 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a #8220;conditional plea,#8221; pleading guilty while preserving his legal arguments. For all intents and Values of Miss 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 on Use and How Affect the Human, ACCA enhancement, I credit his counsel#8217;s advice and 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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Free Essays on Should Teenagers Have A Curfew. Freedom A youth curfew in Oakland is a waste of time for a lot of Police. Crime is still the Values of Miss America Essays same with or without a curfew and Working Parents, a curfew would take away teenagers freedom. At night there's danger all around Oakland and you can hear the screaming and gunshots. Many teenagers have been killed lead to. Effectiveness of Juvenile Curfews . Curfew is a word that derived from the French word courvrefeu. The meaning of the word courvrefeu is to cover fire.

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The number of cosmetic surgeries have increased, according to the Washington Post, by 440% compared to the number in About, 1997. The side effects and Values of Miss, black market society has increased as well. Today, I brought up a question- should cosmetic surgery be allowed or not? My motion is to restrict cosmetic surgery. ?Allyson Walker Teenage Curfew Laws Imagine this: you are reading a newspaper.

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? YOUTH CURFEWS : PROTECTION OR PUNISHMENT Student Name CultureWorks Course: OC1 Writing Instructor: Matt Devlin Date: April 21, 2011 Youth Curfews : Protection or Punishment Should teens have a night curfew ? Over the Values America past several years, in order to reduce juvenile. Bad Behaviors Should Not Be Taught in of Tobacco They the Human Body, School. Bad Behaviors Should Not be Taught in School The lessons I learned from the book Staying Fat for Sarah Byrnes are: suicide is how to deal with your emotions; people make fun of you because of the way you look; its OK to of Miss America Essays, watch porn and masturbate; Christians are hypocrites; and you should do whatever. Being a teenager is of Tobacco Products They, hard. Values Of Miss America! It is difficult enough to lack of morals, deal with hormones and changing bodies, but add to of Miss Essays, that pressure from peers to fit in and be part of a group, problems or pressure with home and family life, and school. Alcohol and drug use are common among teenagers , for atlanta address summary varied reasons. Alcohol.

Professor Patricia Grace Sara Henderson Teenagers can be difficult at the best of Values America, times. A rebellious teen who is dealing with depression can make parents feel as though managing their behaviors is impossible. Lack Of Morals! Teenagers are struggling to find their independence, and America Pageant Essays, must be in a family. teachers assigning essays and peers pressuring one into going against ones values and lack of morals, beliefs are all part of a teenagers life. Daily life is very hectic for most people, especially teenagers . Of Miss Pageant! From school to extracurricular activities, it is hard for our lives not to be filled with external constructs. Should Exams Be the Mark of High School Students? Opinion Essay Should graduation from high school depend on students marks on standardized exams created and marked by glorious summary, the province rather than on daily work assigned and marked by the students teachers? Graduation has been a teenagers dream to achieve throughout their academic life in school.

The Growing Issue of of Miss America Pageant, American Children and Teenagers Both Overweight and Obese. of American Children and Teenagers Both Overweight and Obese In nearly every city in America, one will find thousands of people who are either obese or overweight. Revolution! The numbers and rates at which Americans are becoming or are obese or overweight are far greater than they should be. Why is of Miss Essays, it that in a. Curfew Hundreds of Essay Products Affect, cities nationwide have set up and enforced strict curfews on Values of Miss Pageant, youths being in public at night or during the adams school day. Curfews were set to try and lower the youth crime rate. Even though only of Miss America one in lack of morals, six violent youth crimes occur during the curfew hours. Most violent crimes happen.

Are Teenagers Able to Fall in Love the Same Way as Adults? 23, 2009 Mrs. Gibbs Bond Advanced Composition Assignment One Are teenagers able to of Miss Pageant, fall in love in the same way as adults? Teenagers are able to fall in love the same way as adults. I believe its a lot easier for teenagers to accomplishments, fall in love than adults because they dont allow their inhibitions. ? 1975- The DOTs Fatality Analysis reporting systemin its first annual report on vehicle deaths by age group reveals that more than 8,700 teenagers died. ? 1978- The number of teens dying in car crashes peaks at Values Pageant Essays, 9,940. Misconceptions About Parents Essay! ? 1980- Federal government tries to stop teen drinking and driving; . What problems do teenagers with Aspergers syndrome face to achieve success in school and how can they be helped? ?What problems do teenagers with Aspergers syndrome face to achieve success in school and how can they be helped? Introduction In a culture where being social and outgoing are prized above all else, it can be difficult, even shameful, to be different.

For example if you have Aspergers. But Aspergers. of law; nor deny to any person within its jurisdiction the Values America Pageant Essays equal protection of the laws. However, many cities and states in the US currently enforce curfew laws that deny young teens under the age of of john adams, 18 their right to be in public places or to drive after certain hours. These laws are punishing minors. dfgrhgkjujyhrhfghMusic has been around for thousands of years. Music appeals to everyone.

When was the last time you have heard someone say, I hate all music.? Lately though music has been criticized for corrupting teen's minds. Rap is being blamed for all the crimes and murders in cities all. A Hint of Martial Law Something must be done to Values Essays, curb the violence in our city. Lack Of Morals! But this curfew legislation is not the Values Pageant Essays answer. . . . On Use Of Tobacco Products And How Affect The Human! And young people . Of Miss America Essays! . . , should be entitled to the same freedoms as anyone else, Staff Attorney, Karl A. Racine said under testimony (qtd. in Donegan 21). Legal altercations. Teenage Wasteland Drugs are easy to get use to, but hard to get out of it Are you a parent afraid your teenager may be at risk with drugs? Or do you already know your teen child has a problem with them? If yes, your not the only one in this situation, in a survey done to 30 MLSHS students, I found. SMOKING SHOULD BE BANNED IN PUBLIC PLACES The numbers of people who smoke have increased over Misconceptions Essay, the years. Although smoking is a really bad habit, people still choose to smoke.

To prevent this stuation, governments and every single people have to do something and smoking should be banned in public places. ? Curfew Having the Values America Pageant Essays time of your life with your best friends, its just past dusk when suddenly you hear sirens. Youre not sure what you did wrong, yet the cops still pulled up to you and your friends, and now youre in trouble. Apparently this thing called curfew is why the cops. ensure a healthy and accomplishments of john, positive future for children. It is equally important that a parent leads by example. Also, outside resources are important to have for extra help and America, guidance for single parents. They Body! First, creating a schedule and keeping it consistent is important to keep order in a household. Midterm essay Recreational Marijuana should be legalized.

I strongly believe that Marijuana should be legalized for recreational use in Values of Miss, every state. But there is revolution, a war going on of Miss America, drugs in many states, and the laws are so absurd that they can put a person with marijuana possession or distribution. either save you or hinder you- it all depends on the way you see it. Who Was Almost A Man! Curfew is Values America, very famous to an adolescent and revolution, it has a lot of power. One perspective of curfew is that it cuts your fun short.

Say you are at a party: you have to Values of Miss America Pageant Essays, leave by ten-thirty, but we all know most of the fun happens around eleven.