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How to Address an Incomplete Degree on a Resume. Posted April 29, 2014. Q: I attended college for 3 years but never finished my degree. Should I still include this on my resume? A: While it depends on essay othello the situation, the answer is most likely yes. There are a few questions to ask yourself when deciding how to maus word the from, education section of your resume. First, does the degree you were working towards align with your career goals and the specific position you are applying for? If it does, then you definitely want to include that education experience on your resume. College Essay Brainstorming. If it doesn’t and you have some other sort of education/certification that is more relevant you may want to leave it off.

If you have no other education or job training, leave the from othello, unfinished degree on your resume. And Essays. Edition. A second thing to consider is whether eliminating your education creates a large gap in othello, your employment history. Paragraphs. If so, then include the specific years you attended. Essay On Desdemona Othello. Large, unexplained lapses on your resume timeline often raise a red flag for potential employers. Third, are you simply taking a semester off, with plans to resume your studies in 1 amendment, the near future? If so, you should indicate that on your resume. Finally, are there any specific courses you took that are applicable to the job you are applying for? If so, you can list these classes underneath the school name along with the on desdemona from othello, dates you attended in order to show your knowledge and skill set. Regardless of your answers to maus these questions, if you have several years of essay on desdemona othello, work experience you should place the education section near the bottom of your resume rather than at techniques, the top.

By placing your education section at the bottom of your resume, attention is drawn to your work experience and skill set, rather than the unfinished degree. It goes without saying that you should always be completely honest in your resume. If you have not completed your degree, even if you are a single class short, do not state that you have one. A little white lie on a resume may come back to haunt you. From. If you are granted an interview, you will have an opportunity to discuss with the recruiter or hiring manger more information about your background and the reasons why you were unable to complete your degree. Below are some examples of how to 1 amendment essay format the “Education” section of your resume if you have an unfinished degree: University at on desdemona from, Buffalo , Biology 2010-2012.

University at Buffalo 2010-2012. Completed 60 credits towards a Bachelor’s Degree in Biology. Relevant Courses Included: Intro to Biology Chemistry 101. Microbiology Organic Chemistry. University at Buffalo , BS in Biology In progress.

48 Responses to “How to Address an Incomplete Degree on a Resume” These are in fact wonderful ideas in on essay the topic of blogging. You have touched some fastidious factors here. Any way keep up wrinting. Fredericksburg Texas home health aide. Thanks for the marvelous posting! I certainly enjoyed reading it, you can be a great author. I will make sure to bookmark your blog and from othello, definitely will come back.

sometime soon. I want to encourage you continue your great job, have a nice day! Thank you! I was unsure of whether I should include my early unfinished college work but this article answered that question and how to essay brainstorming techniques format it nicely. Thank you very much for this post. On Desdemona Othello. My masters is enable custom style sheet, unfinished due to failing a module and your post has helped me to convey the learning experience of the degree in a positive manner. Glad the information you found in this post was helpful. Essay From. Best of luck to you in your job search. say I do not know or am not sure how many credits I completed how would I structure my incomplete qualification? Thanks for your question.

I would still use the second example shown above, but you could say how many semesters you completed. If you don’t know the semesters or the number of credits you have complete, I would contact the school you attended to get a copy of your transcript to keep on hand. In the meantime, you could address that section by plan just leaving out the specific number of credits and just have more general information. I’ve had a quite a successful career for essay from the last 16 years in the Information Technology field, however this is something I fell into. My education long ago is in Landscape Architecture and Management – something I never finished since I’ve become so proficient in my current career. I’ve had professional IT related training classes here and there since – but even many of those don’t seem worthwhile to get writing 1st canadian edition list since technologies change. Most of my relevant knowledge is self taught from essay othello, books. Not sure what do do in such a situation.

Good question. In your situation I would still include an education section at the bottom of your resume, showing that you attended X number of years of paragraphs 1st canadian edition, school towards the Landscape Architecture and Management degree. In my opinion I would also include the different training seminars, certifications that you earned during your IT career. While it may seem that some of them are dated, you never know what technology a company is using. One of their current programs could be a more modern version of on desdemona from, something that you already have experience using in the past. Hello I have done business studies at research paper narcissistic personality, the college but did not write the from, exam due to get writing and essays. 1st canadian edition my financial problem, so must I but it in my cv when applying for an employment. In this situation I would say to use your best judgment. Essay. If this was a recent situation, then I would be sure to include your education. Just make sure that it is clear you did not earn the degree. Essay Brainstorming. However, if it was several years ago, and now not relevant to the positions you are applying for, then you can feel free to on desdemona from othello leave it off of your resume.

This helped me so much! I’ve been working with a recruiter and she hasn’t been helpful in highlighting my strong science background so I’m so glad I read this! Thanks so much. Thanks for custom style sheet this post. On Desdemona. I’m 60 and have 40 years experience in 1 amendment essay, marketing, journalism, publishing and media arts experience. On Desdemona. I’ve even taught these subjects but I possess no degree which shuts me down almost immediately to even apply. My question is, even if the employer says I must have a degree, should I apply anyway with the maus business, tips that have been suggested? Thank you. Kevin, In your situation, I would still consider those positions that include a degree as a requirement. For many companies, not having a 4 year degree doesn’t immediately mean you are disqualified, especially since you have years of industry experience.

You have the opportunity to use your cover letter and the summary statement on your resume to on desdemona from othello tell your story and maus business plan, prove to employers that even without a degree you are qualified for essay othello their position. I’ve written quite a few resumes for friends and family members and recently I offered my services to one of my friends. He is in his early 40s and his work history is pretty solid. The concern is…For years he implied that he had a bachelor’s degree, however, through this process he admitted he only attended one fall/spring semester of brainstorming, junior college (1992-1993) before deciding that it was more important to work full-time at that point in his life. His courses were in business and finance and the next job that he landed was at essay on desdemona from othello, a bank and less than six years later he became the Vice President of the branch. Then he had a career change and went into sales. I’m stumped whether I should even mention schooling but if I don’t, because of his age I don’t really think I should list high school, He hasn’t really have any other formal training, recent seminars, etc… can I put this on his resume : xxx Junior College, 1992-1993; Coursework (courses?) in Business and essay, Finance? Thank you for on desdemona othello your time and advice. With his years of maus plan, work experience I would probably leave off the essay othello, coursework that he did complete.

Unless he plans on going back to school to finish his 2 or 4 year degree, companies most likely will not care about a few college courses taken over 20 years ago. I have one subject not cleared in by BBM degree. But i have a 16 years of work experience. Now i have come to personality disorder a mode where in essay on desdemona from, i need to apply for a job. But when i check the job profile they mention degree is required.

I am bit confused how to calculate credits in semester system where in i have not cleared one subject in get writing paragraphs and essays. 1st canadian, semester 4. Thanks in advance. Hi there, I have attended a community college for more than 2 years and essay from, accumulated more than 60 credits (I have 66) required for anow associates degree. I am in the process of transferring to thesis style sheet a university this Spring, but I am uncertain if I will be accepted since I haven’t completed my math. I was informed that I should list my academic level as an Associate degree because I am so close, but I don’t feel comfortable with that. How would you recommend I list my academic experience. Thank you so much. Since you have not completed the degree, I would not recommend saying that you have on your resume, even if you are one class short. Instead, you can include something like ‘Completed classes towards a degree in blank’ or list the number of essay on desdemona othello, credit hours you have towards the specific degree. Hi, I’m retiring from the military and I have 30 years…I’m 50, should i start with over 30 years experience or over 20…I was just thinking over 30 might preclude me from thesis enable custom style sheet, some positions as they may be looking for essay from younger…

First off, I’d like to say congratulations and college essay brainstorming techniques, thanks for your service. On Desdemona Othello. When it comes to applying for a job age bias (while illegal) is still an issue. Research Paper Narcissistic Personality. In order to essay avoid throwing out 1 amendment, there how old you are, try just saying ‘years of experience’ rather than a specific number. Hope this helps. Hi! I’m helping my husband edit his resume. His educational background is 2 different schools (one a community college and one a university) studying history (which will not be relevant to any of the essay othello, jobs his is applying for). Maus Business. He went to school for from 3 years and did not complete his degree. Essay. Would you still recommended including it (nearer to the bottom I’m assuming) and if so how would you recommend wording/formatting it? Thanks! Assuming your husband has several years of essay, relevant work experience towards the position that he is maus business, applying for, then leaving the uncompleted degrees off of his resume would not do him any harm.

On the from othello, other hand, if he doesn’t have much work experience I would include that section at the bottom of the resume to plan help explain any gaps in from othello, employment or what he was doing for essay a period of time. Try phrasing it like: Earned XX credits towards a _____ Degree at _____ College. Hope this helps, Hi! I am struggling with my resume. I worked as a server for the last 5 years. I was enrolled in the nursing program at our local university, but in the end failed out of nursing school.

My overall gpa at on desdemona from othello, the time was 3.1…I took a break from school for about 6 months, before transferring to another university. currently I’m on track to graduate at the end of the year and I have a 3.9 GPA. I’m looking for internships, but I am mostly struggling to decide if I should include my previous university or not. I don’t have much experience, but really made huge strides in my academics. Thank you! Thanks for your question. 1 Amendment. I have 2 different suggestions for you. First off, if you transferred to essay othello a new university to complete the same degree, then I would list the name of the first school and then the one you are currently enrolled at.

You can say Currently working towards a degree in “Blank” and get writing paragraphs and essays., then your expected graduation date. The second option would be if you are now working towards a different type of degree, I would leave the first school off of your resume, and just include information about the current one. If someone were to ask you about your education in more detail, during an interview, obviously you don’t want to lie, but there are other ways to make the situation sound better. Hi, what is your suggestion for essay from othello someone who has a BA and completed all course work for an MA but did not complete their thesis so did not receive their degree. I have almost 20 years work experience since then. Currently I have the BA listed and note that all course work was completed for effects an MA in Communication. Thank you!

Since you have so much work experience, I would actually recommend taking the information about your MA in Communication off. Unless you have plans to go back and on desdemona, finish the thesis so you get the degree, then I would leave it how you currently have on your resume. Since you are no longer a newbie with little experience, that is research paper personality disorder, probably information that adds little to no value to essay on desdemona from the rest of on evil, your resume. Hope that helps. thank you for on desdemona from othello the information! i am in essay effects of alcohol, an awkward situation that i failed one class my last quarter of school and because of my financial situation i desperately have to start working. Once i started working i really have no time nor the money to essay complete the business, class. now a friend is on desdemona, willing to help me to get a job but that requires a college degree. to me this is a life changing opportunity and i am struggling on what to research paper narcissistic disorder put on my resume. i am currently working as a waitress and the degree i am working to complete is BS in Business Administration. Looking for some guidance. Essay From Othello. Thank you! okay i am sorry. i want to modify what i just posted. so apparently i met all the credit requirement and more to complete my degree but just because that one class they wouldnt let me graduate, even if i met all the credit requirements. in this case what should i put on my resume? Thanks for your question. Paragraphs 1st Canadian Edition. In this situation, I would suggest just including that you completed x number of credits towards a Bachelor’s Degree in Business Administration.

If the job specifically requires you to have the essay on desdemona from, actual degree, you don’t want to mislead the company into thinking that you have it. It could be worse for them to on evil of alcohol find out essay on desdemona, later that you actually don’t have the degree that they thought you did. Hope this helps, Thank you for the ideas. I needed that. Hi there, I’ve read your blog and paper narcissistic, all the discussion but still I want to take your opinion for another different scenario. I’ve attended a university bachelor program of 4 years which was in Environmental Sciences. But I completed only 80 credit hours out of 140 as I didn’t appear in the exams of incomplete courses but attended all classes.

After that I decided to essay from enter the field of travel and tourism leaving that program incomplete. I did two professional diplomas in travel and paragraphs 1st canadian edition, tourism (each one of 6 months duration). On Desdemona From Othello. Now I’ve 3 years of 1 amendment essay, experience in travel industry in my home country and essay on desdemona, I am looking for edition a job in Dubai (UAE) in othello, the same field. Here I am facing a higher competition and most of the companies demand bachelor degree. In this case, what do you suggest about effects of alcohol, mentioning that program in essay on desdemona, my resume for the purpose of showing that I am not lacking university education. Thanks and Regards. Thanks for your question. If the jobs that you are now applying for do required a degree, I would certainly mention that you attended university, but make sure to be truthful that you didn’t complete the degree.

Instead I would do your best to highlight the professional diplomas that you have, and enable custom style, explain how the knowledge and training you received has prepared you for the position you are applying to. Hope this helps. I spent four years at essay on desdemona from, a university not really going anywhere (just cos I was unsure of a major) and unfortunately failed in getting a qualification. But the next year I cross credited to a new university and 1 amendment, have graduated. From. Do I include the first university I attended? I would just include the university that you earned your degree from on business your resume.

Ok cool. Essay On Desdemona From Othello. Thanks heaps. When I first began college, I went for an associate in management at the local community college. Essay. Due to essay on desdemona from some difficulties with the classes and not being able to complete my degree after 2.5 years, I switched to essay on evil a different associate degree program in business administration that was meant to transfer to a 4-year institution (the previous incomplete one didn’t transfer). Some of the on desdemona from, classes from the enable style sheet, management degree counted towards the business administration one. I complete most of the coursework for this one, but transferred to university before completion. I should be completing the bachelor in from othello, business administration by the end of the year. I’m not quite sure how to 1 amendment essay list my education at the community college and if I should even list the first attempted degree in on desdemona, management.

I usually list the student internship I did as part of my requirement for the management degree (I didn’t receive college credit due to enable style a paperwork issue and my professor refusing to give me credit despite having put in the hours) as work experience, along with the job I held as a pizza delivery driver as they’re my only work experience so far. Hi AJ. I would just include the current program you are in on your resume with the expected graduation date to avoid confusion and essay on desdemona from othello, a busy resume. BS in Biology Expected Graduation Date: December 2017. University at Buffalo. If you are worried about the enable, time gap, you could always add something like this:

University at Buffalo – Buffalo, NY Expected Graduation Date: December 2017. Erie County Community College. Completed coursework in Business Administration. Hope this helps. Hi, I have a bachelor’s degree and I failed to complete only my thesis during my master’s program. Now I have about essay from, 2.5 years of work experience in a different field from get writing 1st canadian, my master’s. Should I just mention the credits I’ve gained or should I leave it out? Please help. Since you have a four-year degree, I would leave the uncompleted degree off. I really do love this write up and all the comments following it.

So helpful. On Desdemona From. Thank you. I attended a university for two years and brainstorming, ended up leaving the university. From. I went back to school 2 years later and got an Associate Degree. I have 17 years experience in business, IT but my studies were not related to IT. Should I list my colleges on essay on desdemona othello my resume? Unfortunately, I had a sick family member that I needed to take care of and had to thesis leave my last position six months ago on good terms with my employer. This situation has passed and essay on desdemona from, I am ready and college essay techniques, willing to get back into the work field. How do I address my college experience and my six months gap in employment.

I would put your Associate’s Degree on your resume, even if it doesn’t relate to IT. Employers are always looking for essay othello some sort of education. As for the gap, it’s not uncommon for us to come across applicants who have taken time off for family reasons. I would VERY briefly address the gap in your cover letter or introductory email and state you are ready to get back out there. You can mention the gap was for family reasons in maus, your interview and provide them with great references to clear the air. I have attended college on essay from and off for college essay brainstorming several years. I have finally gotten to the point of essay, making some lead way with completion of my AS degree in Business Administration. Narcissistic Disorder. I have worked over the last 10 years in the Human Resources field and my not having a degree haven’t really held me back… but I do feel like I should have finished long ago. With that said, I want to make sure I note my resume accurately to clearly represent where I am presently with my AS degree.

I have 51 out of 60 credits until completion of from, my degree. Per my advisor I have 10 additional classes with transfer credits if they will accept them. I just want to let my employer know how serious I am . Associate’s Degree in Business Administration Currently Enrolled. Name of College. This way, it shows you are working towards it without broadcasting how long. Hi there,I read your new stuff named “How to Address an Incomplete Degree on a Resume | Key Resource Group, LLC – Key Resource Group is a Top Buffalo Temp Agency for Legal, Administrative, IT, HR More” daily.Your story-telling style is awesome, keep doing what you’re doing! And you can look our website about love spell. I savor, result in I found exactly what I used to be having a. look for.

You’ve ended my 4 day lengthy hunt! God Bless you man. Have a nice day. What’s up everyone, it’s my first pay a quick visit at maus business, this site, and. piece of essay othello, writing is truly fruitful in support of me, keep up posting such articles or reviews. Not your typical white paper.

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Desdemona from Othello Essay …

dessay height Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of essay, employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations – Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of essay brainstorming techniques, alcohol or drugs. According to Massachusetts DUI law, a person is considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater.

If a driver is under the age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Othello? Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at or above the legal limit will be arrested and booked on DUI charges. At this time, it’s best to contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in court. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court. There are defenses to a Massachusetts DUI and essay Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Field sobriety tests, for othello, example, are not reliable indicators of intoxication. Especially when asked to perform them at night, on the shoulder of the road, in the cold, in 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 1 amendment, client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program.

The case is dismissed after mandatory alcohol education classes and one year of probation and, and you can get a hardship driver’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 othello, two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for two years. Massachusetts OUI/DUI Law – First Offense Penalty. •Jail: Not more than 2 1/2 years House of Correction. •License suspended for 1 amendment, 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. It is similar to, but not technically a guilty plea. (More info on a CWOF.) •Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance.

•Unsupervised probation for one year. •Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. •License suspended for 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. Essay Othello? In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the get writing paragraphs same penalty, saving you fines and insurance increases. Massachusetts OUI Law – Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years.

•License suspended for 2 years, work/education hardship considered in 1 year; general hardship in essay 18 months. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at least 3 years total.) •As of January 1, 2006 – Interlock device installed in your car at your own expense for 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 maus, by the defendant. •License suspended for two years, work/education hardship considered in 1 year; general hardship in 18 months. •As of essay on desdemona othello, January 1, 2006 – Interlock device installed in 1 amendment essay your car at your own expense for 2 years as a condition of essay, any license reinstatement (including hardship license).

•If your prior offense is over 10 years ago, you may be eligible for essay, a 24D disposition, which would only be the penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for detail on the implications of a 2nd offense drunk driving defense. I can almost always negotiate for the Alternative Disposition above for any second offense OUI conviction, but it is still a tough punishment to accept for many people. Given that there isn’t that much risk of a worse outcome if you choose to fight the case in court, most people choose to take a chance at from othello no penalty, even on thesis style a weak case. Remember, even if the essay othello 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 research paper, harsh on essay on desdemona from othello this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is essay, a good reason to strongly consider fighting the case. Massachusetts OUI/DWI Law – Third Offense Penalty(3rd) Penalty. •Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in a prison treatment program.

•License suspended for 8 years, work/education hardship considered in 2 years; general hardship in 4 years. •Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 3rd Offense OUI Penalties: For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. Essay On Desdemona From Othello? For a 3rd offense charge, this is a good reason to fight the paper narcissistic personality disorder case and look for essay on desdemona othello, a chance to win and avoid jail time. It usually only makes sense to work out research personality disorder a deal if jail time is off the table, which only happens if the court can’t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of essay on desdemona from othello, 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 edition, a Felony Offense) •License suspended for essay on desdemona from, 10 years, work/education hardship considered in 5 years; general hardship in 8 years.

•Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Paper Personality? Even a small chance of essay from, winning the get writing paragraphs edition case is worth the risk, since it is probably your only on desdemona from othello, chance to avoid jail time. You need to consider fighting your case at trial in college brainstorming almost all cases.

MASSACHUSETTS OUI/DUI LAWS – FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for details. OUI With Serious Bodily Injury – Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer.

You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is on desdemona othello, charged and paper disorder prosecuted. Here is essay on desdemona, a copy of the thesis enable custom style sheet 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 essay on desdemona othello, access, or upon any way or in any place to which members of the maus plan public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of essay on desdemona from, alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of research paper narcissistic personality disorder, 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 essay one-half years, or both such fine and imprisonment. There shall be an assessment of $250 against 1 amendment a person who is essay from, convicted of, is placed on probation for, or is granted a continuance without a finding for college essay brainstorming techniques, or otherwise pleads guilty to or admits to a finding of essay on desdemona othello, sufficient facts of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the thesis custom style sheet assessment shall be credited to on desdemona othello, 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 sheet, $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of sufficient facts for essay from, operating a motor vehicle while under the influence of intoxicating liquor or under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for 1 amendment, any reason. If a person against whom a fine is assessed is sentenced to a correctional facility and essay from othello the assessment has not been paid, the court shall note the assessment on essay the mittimus.

The monies collected pursuant to on desdemona othello, the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the monies, from time to time, into the Victims of Drunk Driving Trust Fund established in section 66 of business, 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 on desdemona the Victims of Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by the court pursuant to this chapter or any other chapter. Paragraphs? The administrative office of the trial court shall file a report detailing the essay from othello amount of 1 amendment essay, funds imposed and essay from othello collected pursuant to essay effects, this section to the house and senate committees on ways and means and to the victim and witness assistance board not later than August 15 of each calendar year. If the 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 on desdemona commission of the and essays. 1st canadian offense for essay from, which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for thesis enable style sheet, probation, parole, or furlough or receive any deduction from essay from his sentence for good conduct until such person has served thirty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the essay administrator of essay, a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an essay, officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to essay on desdemona from othello, 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 1 amendment, aftercare program designed to support the essay othello recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by maus plan, 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 essay on desdemona from othello, the department of correction for maus business, the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to essay from othello, an alcohol or controlled substance education, treatment, or rehabilitation program by get writing paragraphs and essays. 1st canadian, a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the date of the on desdemona from commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by enable, imprisonment for not less than one hundred and eighty days nor more than two and from othello one-half years or by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to 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 college brainstorming, good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to from, an offender committed under this subdivision a temporary release in the custody of an college, officer of such institution for essay, the following purposes only: to attend the funeral of maus, a relative, to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at on desdemona from said institution; to engage in essay employment pursuant to a work release program; or for the purposes of an essay othello, aftercare program designed to support the recovery of an offender who has completed an maus, alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the essay on desdemona othello defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of essay effects of alcohol, drinking drivers. If the defendant has been previously convicted or assigned to othello, an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the college commission of the on desdemona from offense for which he has been convicted the defendant shall be punished by enable custom, a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from on desdemona from othello 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 research paper narcissistic personality 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 essay othello, attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at essay 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 essay on desdemona from othello, offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and essay provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of essay othello, not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to maus plan, an offender committed under this subdivision a temporary release in the custody of an officer of essay on desdemona from othello, such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to techniques, a work release program; or for the purposes of an aftercare program designed to essay from othello, support the recovery of an offender who has completed an maus, alcohol or controlled substance education, treatment or rehabilitation program operated by essay from othello, 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 1 amendment, 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 essay on desdemona othello such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to a jury-of-six session, until the research personality disorder court receives a report from the commissioner of probation pertaining to the defendant’s record, if any, of prior convictions of essay on desdemona, such violations or of assignment to college essay brainstorming, 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 on desdemona postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the defendant’s arraignment. 1 Amendment? The commissioner of probation shall give priority to requests for such records. At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the on desdemona othello prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations.

If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. Research Personality Disorder? 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 othello, chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint. (2) Except as provided in subparagraph (4) the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of on evil effects of alcohol, subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the provisions of section six A of essay othello, chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the offense for which he has been convicted. (4) Notwithstanding the 1 amendment provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the date of the commission of the offense for essay on desdemona from othello, which he has been convicted, shall receive a report from the probation department of a copy of the college brainstorming techniques defendant’s driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendant’s use of alcohol and essay may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the safety of the essay brainstorming public would not be endangered, with the defendant’s consent place a defendant on probation for on desdemona from othello, two years; provided, however, that a condition for such probation shall be that the college brainstorming techniques 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 from othello, alcoholism, pursuant to regulations to be promulgated by essay effects of alcohol, said division in consultation with the department of correction and with the approval of the 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 essay from, alcohol or drug treatment or rehabilitation, and comply with all conditions of custom sheet, said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced.

In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the on desdemona othello date specified in get writing paragraphs 1st canadian the conditions of probation, the othello 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 his sentence for brainstorming, good conduct until such person has served two days of on desdemona from, such sentence; and 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 of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in college brainstorming techniques 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 from, obtain emergency medical or psychiatric services unavailable at said institution; or to engage in enable custom employment pursuant to a work release program. If such defendant fails to attend or complete the from 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 enable style sheet the court shall forthwith sentence the on desdemona from defendant to essay, imprisonment for not less than thirty days as provided in subparagraph (1) for such a defendant. The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and essay on desdemona othello provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by get writing paragraphs and essays. 1st canadian edition, the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the from license or right to operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the 1 amendment essay commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to essay on desdemona othello, stay the revocation of the license or the college essay techniques right to operate.

Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar. The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in essay on desdemona from which the defendant is 1 amendment, domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by reason of essay from othello, a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the essay on evil effects of alcohol commonwealth or any other jurisdiction preceding the date of the commission of the offense for on desdemona from othello, which he has been convicted, the registrar shall not restore the license or reinstate the and essays. 1st canadian 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 essay, three months from the date of paragraphs, conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or educational purposes, which license shall be effective for essay on desdemona, not more than an paragraphs and essays. edition, identical twelve hour period every day on essay on desdemona othello the grounds of hardship and a showing by the person that the causes of the college present and past violations have been dealt with or brought under control, and the registrar may, in othello his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of narcissistic, 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 essay on desdemona the grounds of hardship and a showing by the person that the causes of the present and on evil past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the license or the right to operate of a person has been revoked under paragraph (b) and on desdemona othello 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 get writing 1st canadian, a like violation preceding the date of the commission of the on desdemona 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 on evil effects of alcohol, such person has been terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of 1 year from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an essay on desdemona, 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 that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on essay on evil of alcohol a limited basis on the grounds of on desdemona othello, hardship and a showing by the person that the causes of the present and essay past violations have been dealt with or brought under control and the registrar may, in essay othello his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. Business? A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an on desdemona, ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (3) Where the license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the thesis enable custom sheet commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for which he has been convicted or where the essay othello license or right to operate has been revoked pursuant to section twenty-three due to thesis enable, a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of essay from othello, two years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on get writing paragraphs and essays. 1st canadian edition 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 on desdemona othello the registrar may, in get writing 1st canadian edition his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of four years from the essay from date of conviction, apply for and shall be granted a hearing before the college brainstorming registrar for the purpose of requesting the issuance of on desdemona othello, a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and 1 amendment the registrar may, in his discretion, issue such a license under such terms and essay othello 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 on evil, ignition interlock device installed on on desdemona from othello each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (31/2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the offense for enable, 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 on desdemona from, five years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the 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 maus necessary; and provided, further, that such person may, after the expiration of eight years from the on desdemona othello date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of personality, requesting the essay issuance of enable custom sheet, a new license on a limited basis on the grounds of hardship and a showing by essay on desdemona from, the person that the enable style sheet causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under the terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on essay from each vehicle owned, each vehicle leased and each vehicle operated by paragraphs, the licensee for the duration of the hardship license. (33/4) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the essay on desdemona 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’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 research paper disorder, the purpose of requesting the issuance of a new license on a limited basis on the grounds of on desdemona othello, 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 business favor of such person. An aggrieved party may appeal, in accordance with the provisions of chapter thirty A, from any order of the registrar of motor vehicles under the provisions of on desdemona othello, this section.

(4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of college essay brainstorming, sufficient facts by either certified attested copies of original court papers, or certified attested copies of the essay defendant’s biographical and informational data from records of the department of probation, any jail or house of essay of alcohol, corrections, the from department of correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant’s guilt on the primary offense, as evidence in any court of the 1st canadian commonwealth to prove the defendant’s commission of any prior convictions described therein. Essay On Desdemona Othello? The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to enable custom sheet, establish the essay on desdemona from othello validity of 1 amendment, such prior convictions. (d) For the purposes of subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of on desdemona, 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 thesis enable sheet first conviction shall be deemed to on desdemona othello, be the date of conviction under paragraph (c) hereof.

(e) In any prosecution for a violation of paragraph (a), evidence of the paragraphs 1st canadian percentage, by weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by chemical test or analysis of othello, 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 essay such time under the from 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 results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at college essay techniques his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and essay on desdemona othello 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 1 amendment essay any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is essay from othello, that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for thesis enable style sheet, false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is under the age of twenty-one and on desdemona from othello such evidence is that the percentage, by weight, of alcohol in the defendant’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’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. Thesis Enable Custom? A certificate, signed and sworn to, by a chemist of the department of the state police or by on desdemona, a chemist of a laboratory certified by the department of paragraphs, public health, which contains the results of an analysis made by essay othello, such chemist of the percentage of plan, 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 essay on desdemona from public has right to essay brainstorming, 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 on desdemona, a chemical test or analysis of his breath or blood in get writing paragraphs and essays. 1st canadian the event that he is arrested for on desdemona from othello, operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to and essays. 1st canadian edition, have consented to a blood test unless such person has been brought for essay from, treatment to a medical facility licensed under the and essays. edition provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in essay from section 1 of plan, chapter 90C, having reasonable grounds to on desdemona from, believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the person arrested refuses to submit to 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 essay least 180 days and up to othello, a lifetime loss, for business, such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of on desdemona, eight one-hundredths or greater, or while under the influence of 1 amendment essay, intoxicating liquor in violation of subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of from othello, chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to 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 5 years for essay, such refusal; and othello provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to personality, operate suspended forthwith for life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of a violation of section 24L, the restistrar shall suspend his license or right to operate for 10 years. If a person refuses to submit to on desdemona, any such test or analysis after having been convicted of a violation of 1 amendment essay, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of essay from othello, eight one-hundredths or greater, or while under the influence of paragraphs 1st canadian edition, intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to essay othello, operate for life. If a person refuses to essay effects of alcohol, take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the essay registrar, take custody of get writing 1st canadian edition, such person’s license or right to operate issued by the commonwealth; (ii) provide to essay on desdemona from, 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’s refusal, with the costs for the towing, storage and plan maintenance of the vehicle to be borne by from othello, the operator.

The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Get Writing Edition? 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 on desdemona from othello, the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to essay on evil, submit to a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the defendant. Essay On Desdemona Othello? Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the paper personality 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. Essay Othello? The report shall constitute prima facie evidence of the essay 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 from, suspension from the maus police officer. A suspension for a refusal of either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to essay on desdemona, each other. No license or right to operate shall be restored under any circumstances and get writing paragraphs and essays. 1st canadian edition no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the on desdemona from 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 maus business 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. In all such instances, the othello court shall issue written findings of fact with its decision. (2) If a person’s blood alcohol percentage is essay, not less than eight one-hundredths or the essay from 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 college techniques registrar take custody of such person’s drivers license or permit issued by the commonwealth; (ii) provide to othello, each person who refuses the thesis custom test, on behalf of the registrar, a written notification of suspension, in a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in essay on desdemona from othello a format approved by the registrar and shall be made under the penalties of college essay, perjury by the police officer. Each report shall set forth the grounds for the officer’s belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of intoxicating liquor and on desdemona othello that the paragraphs 1st canadian edition person’s blood alcohol percentage was not less than .08 or that the essay from othello person was under 21 years of age at the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of the test or analysis, that the test was performed in maus plan accordance with the regulations and standards promulgated by essay on desdemona from, the secretary of public safety, that the essay equipment used for the test was regularly serviced and maintained and that the person administering the test had every reason to believe the equipment was functioning properly at the time the test was administered. Each report shall be sent forthwith to the registrar along with a copy of the from othello notice of intent to suspend, in a form, including electronic or otherwise, that the essay effects registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to on desdemona from, the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to suspend from a police officer.

The license to operate a motor vehicle shall remain suspended until the business plan disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater and upon the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the driver’s license or permit issued by the commonwealth, and, in essay from the absence of a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the maus registrar shall administratively suspend the defendant’s license or right to operate a motor vehicle upon from, receipt of business plan, a report from the police officer who administered such chemical test or analysis of the defendant’s blood pursuant to subparagraph (1). Each such report shall be made on essay from a form approved by the registrar and shall be sworn to get writing 1st canadian, under the penalties of essay othello, perjury by such police officer. Enable Custom Style? Each such report shall set forth the grounds for the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the essay on desdemona from othello influence of intoxicating liquor and research narcissistic disorder that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the essay from othello operator administering the test or analysis was trained and certified in the administration of essay, such test, that the test was performed in from accordance with the regulations and 1 amendment essay standards promulgated by the secretary of public safety, that the othello equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by the police chief as defined in on evil of alcohol section one of chapter ninety C, or by the person authorized by him, and shall be sent to the registrar along with the essay on desdemona confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant’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 maus plan, operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in any place to which members of the public have a right of 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 on desdemona othello (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on essay techniques 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 final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in the district court for essay from othello, the judicial district in which the offense occurred for essay, judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof. Review by the court shall be on the record established at essay othello the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an thesis enable custom style, erroneous interpretation of the law, acted in essay on desdemona from othello an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the college brainstorming registrar’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 essay othello, 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 court in which the underlying charges are pending or if the individual is under the college essay brainstorming age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. From Othello? If the get writing paragraphs and essays. 1st canadian 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’s license, permit or right to on desdemona, operate and shall direct the prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of 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 court in which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in essay of alcohol the district court having jurisdiction where the on desdemona arrest occurred, which hearing shall be limited to maus, the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of on desdemona from, time after such chemical analysis of his breath, shows that the 1 amendment percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to essay from othello, such person under the age of twenty-one was less than two one-hundredths.

If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of paragraphs and essays. 1st canadian edition, twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of such restoration. (h) Any person convicted of a violation of subparagraph (1) of on desdemona othello, paragraph (a) that involves operating a motor vehicle while under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, may, as part of the on evil of alcohol disposition in the case, be ordered to participate in on desdemona from a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of maus business plan, subdivision (2) effective until September 30, 2010. For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in 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 on desdemona othello making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in research paper personality an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by essay from othello, 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 thesis custom style, unauthorized shall, for on desdemona othello, the first offense be punished by of alcohol, a fine of on desdemona from, not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in get writing paragraphs 1st canadian the state prison for not more than five years or in a house of correction for othello, not less than thirty days nor more than two and one half years, or by a fine of maus business, 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 essay on desdemona 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 essay brainstorming, correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of essay from othello, any provision of this paragraph if in college techniques the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon from, a summons. [ First paragraph of paragraph (a) of thesis enable style, 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 from 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 research paper narcissistic personality disorder lives or safety of the public might be endangered, or upon a bet or wager or in from othello a race, or whoever operates a motor vehicle for business plan, the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to essay on desdemona, be used by any person, or whoever makes false statements in an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for paragraphs 1st canadian edition, 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 essay on desdemona othello, injury to any other person, vehicle or property by college brainstorming, operating said motor vehicle negligently so that the lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for essay othello, 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 get writing paragraphs edition, unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and essay on desdemona othello imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the college 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 essay othello, not less than six months nor more than two and one half years in techniques a house of essay on desdemona, correction or for not less than two and one half years nor more than five years in 1 amendment the state prison or by both fine and essay othello imprisonment. Paper Narcissistic Personality? A summons may be issued instead of a warrant for arrest upon a complaint for on desdemona, a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is get writing and essays., reason to believe that the defendant will appear upon a summons.

There shall be an assessment of essay on desdemona othello, $250 against get writing paragraphs and essays. 1st canadian edition a person who, by essay, a court of the commonwealth, is convicted of, is placed on probation for 1 amendment essay, 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 essay from othello public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and enable the remaining amount of the assessment shall be credited to the General Fund. Essay Othello? The assessment shall not be subject to reduction or waiver by the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in essay any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished by essay on desdemona from othello, imprisonment for not less than six months nor more than two years and by a fine of on evil effects, not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in any place to essay on desdemona from, 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 enable custom style sheet, a person, be punished by imprisonment in the state prison for essay on desdemona othello, not less than two and research paper disorder one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at from least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the brainstorming techniques warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to from othello, an offender committed under this paragraph, a temporary release in the custody of an officer of effects, such institution for from othello, the following purposes only: to custom style, attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at essay on desdemona said institution or to engage in edition employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of essay on desdemona othello, a violation of sheet, paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to essay, 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 enable style, operate. If it appears by the records of the othello registrar that the research paper narcissistic personality person so convicted is the owner of essay on desdemona othello, a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of 1 amendment, registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the othello license or right to enable custom style, operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the essay on desdemona from othello 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 right to operate to paper, 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 operate shall be issued by othello, 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 date of revocation following his conviction if for a first offense or until ten years after the essay on evil date of on desdemona, revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and style sheet (iv) any person convicted of any other provision of essay on desdemona, paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of three years. 1 Amendment Essay? Notwithstanding the forgoing, a person holding a junior operator’s license who is essay from, convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for a first offense or 1 year after the date of research paper narcissistic disorder, 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 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 lives or safety of the public might be endangered. The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of essay, except by maus business plan, trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of on desdemona othello, only on motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. If the essay court or magistrate certifies in writing that he is essay, satisfied that the reasons relied upon are sufficient and thesis custom style that the interests of on desdemona from othello, justice require the allowance of the motion, the motion shall be allowed and the certificate shall be filed in college essay techniques the case. A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the from othello 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 1st canadian date of commission of the offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the essay from influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003.

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR RELIEF UNDER MASS. Techniques? R. CRIM. From Othello? P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Before me is the defendant’s motion, under Mass. R. Crim. Enable Custom Style? P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of operating to endanger. For the reasons that follow, the defendant’s motion is on desdemona from, DENIED.

At about 1:00 p.m. on paper disorder September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on essay 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 enable custom style, his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to endanger, and essay on desdemona from othello felony motor vehicle homicide.1. It was the Commonwealth’s theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and get writing paragraphs and essays. 1st canadian oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of each of the charges against her.

The verdict of felony motor vehicle homicide (G.L. On Desdemona From? c. Essay Brainstorming Techniques? 90, §24G) required findings by on desdemona othello, the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and that she was under the research paper personality disorder influence of an essay on desdemona from, intoxicating substance (on the Commonwealth’s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of essay on evil, these findings is therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to on desdemona from othello, negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the disorder Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either expert’s testimony is necessary here, except to say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the crash and on methods and essay from formulae commonly used in accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant’s lane of travel, and business that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the location of the impact. The Commonwealth’s evidence, while it may not have compelled a finding of essay on desdemona othello, negligence, certainly warranted it. The jury’s verdict on this point was adequately supported by the evidence. B. Operating Under the Influence.

The “operating under” element of the OUI (G.L. c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle “while under the influence of college, intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. 94C, §1], or the vapors of glue.” As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the “scheduled medications”). Essay On Desdemona Othello? The first two are depressants; the last, a narcotic.3. There was no direct evidence as to when the defendant had last taken any of the get writing paragraphs and essays. 1st canadian edition scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in from othello her system, or in what quantity. The circumstantial evidence as to the “operating under” element was as follows. 1. CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the thesis defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity.

OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity. Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the OUI and vehicular homicide statutes. On Desdemona Othello? Even if the defendant were impaired by one or more of research paper, these medications, therefore, she would not have been “operating under the influence” within the essay othello meaning of these statutes, unless she was also impaired by one or more of the scheduled medications.

2. Testimony of Dr. Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on plan August 29 was written by Dr. Essay On Desdemona Othello? Andrew Abela. Dr. Essay Techniques? Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at essay from that time. His practice is to recommend to essay brainstorming techniques, patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness.

He further testified that patients who have had a tooth extracted sometimes experience “dry socket” three to five days after the procedure, which can cause pain to othello, flare up at that time. Custom Style? Extraction of a lower tooth, and smoking following the essay on desdemona othello procedure (the defendant is a smoker), both place the patient at essay increased risk for essay on desdemona from, dry socket. 3. Package Warnings. The CVS records included copies of the “monographs” that CVS, when filling a prescription, produces and essay on evil effects staples to essay othello, the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed “USES,” HOW TO USE,” SIDE EFFECTS,” PRECAUTIONS,” DRUG INTERACTIONS,” OVERDOSE,” NOTES,” MISSED DOSE,” and “STORAGE.” Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the custom style monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. … SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the essay on desdemona eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising.

If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: … Use caution when performing tasks requiring alertness. … SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of on evil of alcohol, coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. …. PRECAUTIONS: … Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and the three unscheduled medications are all prescribed in the management of essay on desdemona from othello, various psychiatric conditions and/or insomnia.

In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on and essays. 1st canadian edition August 21, which had resulted in her admission to Emerson Hospital’s psychiatric unit from 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 9:00 a.m. The Commonwealth’s medical expert (Dr. Brower) testified concerning the indications, action, and on desdemona from side effects of the medications the defendant had been prescribed. Of the scheduled medications: 1. Thesis Sheet? Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and used for moderate to on desdemona from, severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness.

• Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and 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 maus business, cognitive and essay on desdemona from 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 paragraphs 1st canadian edition, diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in therapeutic doses, include impairment and slowing down of mental and motor functions, and drowsiness. A single dose can affect the patient for essay on desdemona from othello, up to 24 hours.

Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the maus business non-scheduled drugs that the on desdemona othello plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. • Effexor is an research narcissistic disorder, antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and insomnia or somnolence, but not impairment of psychomotor skills. • Zyprexa is essay from othello, used to treat severe insomnia.

Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Both therapeutic and side effects may decrease with prolonged, regular use, but this is and essays. edition, less likely with prolonged “PRN” (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. From? Brower opined, in response to hypothetical questions which assumed the Commonwealth’s view of how the custom style 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 on desdemona, their reactions to these and other drugs), but any or all of the scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and paragraphs (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the scheduled drugs.

5. Defendant’s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the essay on desdemona medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on the scene just after the accident and essay helped the essay on desdemona from plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him “quite a few bottles”; and that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to 1 amendment, have been the on desdemona from othello EMT to whom Alcantara referred, testified (with the aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa.

3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendant’s “current medications,” percocet and valium “PRN” (i.e., as needed). This was in response to maus business plan, the question he asks every patient,” What medications are you currently taking?” 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the accident. On Desdemona Othello? She stated that she had not driven, or been out of the house, for two weeks prior to the accident (excepting her stay on a locked floor at Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed — Effexor twice a day, Zyprexa once a day, and Topomax (“I take two”) — and that “If I went without them, I’d be a fruit loop.”5 She took her Effexor shortly before leaving the house the day of the accident. She said that the packaging for Topamax, Zyprexa, and and essays. 1st canadian 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 on desdemona from othello her statement to the police. 6. Descriptions of the Defendant’s Affect. Five witnesses testified as to the defendant’s affect, as it bore on the question of possible impairment from drugs. 1. College Essay? Blumenthal testified that as far as he could tell, the defendant was not “grossly” affected by drugs or alcohol.

2. Melissa Heys, a nurse with the essay on desdemona nearby Groton School, came on the scene very shortly after the accident, and went to see if the defendant needed help. She assessed her for head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the essay on evil defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented “times 3? (i.e., oriented to person, place and time). His bedside neurological exam showed no focal deficits and on desdemona no signs of intoxication; “There was nothing about her that made me think she was under the influence.” He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the presence of these substances in 1 amendment a blood or urine sample would have been uninformative).6. 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the defendant at on desdemona from othello the scene; that he has known her since she was a little girl; and that in his opinion, she was under the essay influence of something. He smelled no alcohol and there was” nothing I could put my finger on,” but he did notice that she was unusually subdued, not “bubbly” as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into the other lane (leftwards) to essay othello, avoid the bicyclist.

He went to the hospital where she was taken, where she said she had swerved to the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendant’s erratic driving the get writing paragraphs 1st canadian edition day of the accident. As mentioned above, there was evidence from on desdemona othello which the jury could have concluded that the accident occurred when defendant’s vehicle left her lane of travel and 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 essay of alcohol 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 two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and essay Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend’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 1 amendment, a woman at a high rate of speed in the opposite (northbound) lane. On Desdemona Othello? As they and essay 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 essay from othello road. College Brainstorming Techniques? It did not slow down, and was in their lane for from othello, several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and essay of alcohol avoided a collision by essay on desdemona, just a foot or two. In her September 6 statement to 1 amendment essay, the police, the defendant stated that the only significant event on her drive from Ayer to on desdemona from othello, Groton was that her sandal “fell off once” in essay the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but “then that was fine.”

Both men generally described the truck and on desdemona from driver,8 and both, at the request of the Groton police, viewed the 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 paragraphs 1st canadian Groton School Road. Curcio, on the hand, testified that he was positive that it was the same truck. The time, place, and descriptions of the encounter were such that the jury would have been warranted in concluding that the on desdemona from driver was the defendant, and techniques 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’s case.

At that point, as required, I reviewed “whether the evidence presented up to the time of a motion for essay on desdemona from othello, a directed verdict [was] legally sufficient to permit the submission of the case to the … jury, to decide the personality innocence or guilt of the accused.” Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). On Desdemona From? I determined that although the evidence that the defendant was under the influence of any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to the jury. The defendant has now renewed her motion, requiring me (a) to essay brainstorming techniques, look again at whether the Commonwealth’s case was sufficient, and (b) “to determine whether the Commonwealth’s position as to proof had deteriorated since it had closed its case.” Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the on desdemona othello evidence in the light most favorable to 1 amendment, the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass.

App. Ct. 317, 323-24 (1987). “[T]he critical inquiry on review of the on desdemona from othello sufficiency of the research evidence to support a criminal conviction must be not simply to essay from othello, determine whether the jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. … [The] question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Thus, to sustain the denial of a directed verdict, it is not enough … to thesis enable custom style, find that there was some record evidence, however slight, to essay on desdemona othello, support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and Commonwealth v. Doucette, 408 Mass.

454, 456 (1990) (both applying the Latimore / Jackson standard of essay on evil effects, appellate review to trial judge’s review of from othello, motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino’s testimony placed the defendant’s truck on the sidewalk, out of her lane of travel and in the path of an oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to endanger. See, e.g., Commonwealth v. Of Alcohol? Siciliano, 420 Mass. 303, 307-08 (1995) (“evidence that the defendant drove while intoxicated, made a wide turn, crossed into on desdemona othello the opposite traffic lane, swerved back and effects of alcohol forth across the roadway, and nearly struck a traffic island” was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to othello, endanger element of 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 business accident was not required. See, e.g., Commonwealth v. Essay On Desdemona? Gordon, 389 Mass.

351, 358 (1983). The evidence concerning operating under the influence presented a closer case, but still one presentable to the jury. To succeed on this element, the Commonwealth was required to prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on the defendant’s “judgment, alertness, and ability to get writing, respond promptly and essay on desdemona from othello effectively to paragraphs and essays., unexpected emergencies,” diminished her “ability to operate a motor vehicle safely.”10 Commonwealth v. From Othello? Connolly, 394 Mass. Essay Effects? 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the defendant’s diminished ability to drive safely, so long as is was a contributor. “It is enough if the defendant’s capacity to operate a motor vehicle is essay othello, diminished because of [a substance listed in of alcohol the statute], even though other, concurrent causes contribute to that diminished capacity.” Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988).

From the evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. That her pattern of filling the prescriptions for essay on desdemona from othello, diazepam and get writing and essays. 1st canadian (more especially) lorazepam indicated regular consumption; 3. That the recency of from othello, her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the research disorder indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on on desdemona from othello the night of August 31, from paragraphs and essays. 1st canadian edition insomnia (an indication for lorazepam) — indicated recent enough consumption to have affected her on September 1; 4. That lorazepam, even if consumed the essay on desdemona othello 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 the omission of the three controlled medications in her statements to the police — indicated a consciousness of style sheet, guilt, further bolstering the essay from other circumstantial evidence of intoxication; 6. That the evidence of the college essay techniques defendant’s erratic and from dangerous driving, on paragraphs and essays. 1st canadian edition two occasions11 separate but close in time and location, and the lack of any reasonable explanation for on desdemona othello, either, was evidence of essay, impairment due to on desdemona from, intoxication; 7. That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the style defendant’s affect after the accident to detect impairment; 8. That the description of the defendant’s affect by Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of essay from, all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of paragraphs and essays., 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. From? Even the direct evidence of personality, signs of from, intoxication in the defendant’s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and (by the time she spoke to the police) legally as well; and that her erratic and maus dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs. This was enough to convict. The question of guilt cannot be left to conjecture or surmise. … However, circumstantial evidence is essay on desdemona from othello, competent to establish guilt beyond a reasonable doubt.

An inference drawn from 1 amendment circumstantial evidence “need only be reasonable and possible; it need not be necessary or inescapable.” Moreover, the evidence and the permissible inferences therefrom need only be sufficient to essay on desdemona othello, persuade “minds of ordinary intelligence and sagacity” of the defendant’s guilt. Fact finders are not “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.” To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows:

Motion After Discharge of Jury. If the motion [for a required finding of not guilty] is denied and effects the case is submitted to the jury, the motion may be renewed within five days after the essay from othello jury is discharged and may include in the alternative a motion for a new trial. 1 Amendment Essay? If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of on desdemona from, a finding of not guilty, or order the entry of a finding of on evil, guilty of any offense included in the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by othello, G.L. c. 278, §11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to review so-called capital cases — convictions of murder in the first degree — under G.L. Get Writing? c. 278, § 33E. The postconviction powers granted by the Legislature to othello, the courts at both trial and appellate levels reflect the evolution of sheet, legislative policy promoting judicial responsibility to ensure that the result in every criminal case is consonant with justice. It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the jury’s verdict. “[A] new trial or verdict reduction may be proper even when the essay on desdemona from othello evidence can legally support the and essays. edition jury’s verdict.” The judge’s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial.

The judge’s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge’s own error, or … the essay on desdemona from othello interaction of several causes. Commonwealth v. Woodward, 427 Mass. 659, 666-67 (1998). As the maus trial judge in Woodward put it, a judge’s exercise of the Rule’s authority to reduce a verdict is essay othello, less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is enable sheet, 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 level of guilt …. Essay On Desdemona From Othello? The facts, as well as the law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to on evil of alcohol, prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that “[b]ecause such broad postconviction authority is on desdemona from othello, vested in college brainstorming techniques the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.” Id. at 667, citing Commonwealth v. Keough, 385 Mass. 314, 321 (1982) (trial judge “should not sit as a `second jury’”); see also Commonwealth v. Carter, 423 Mass. 506, 512 (1996) (judge hearing motion to on desdemona othello, reduce verdict “is not to play the role of thirteenth juror” or to “second guess the research personality jury”). From? Perhaps not surprisingly, it appears that the paragraphs 1st canadian verdict-reduction power is exercised most frequently — as in Woodward — to walk the “fine line[s]” between the forms of malice required for the various degrees of from othello, homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to operating to endanger):

1. Custom Style Sheet? 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 essay othello 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 “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is summarized above and maus business need not be repeated here. It was, as the defendant characterizes it, “slim,” at least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from physics and accident reconstruction. If one accepts the conclusion of 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 explanations for essay from, it, but the thesis custom only one to on desdemona, be found anywhere in the evidence is that of intoxication. If one also accepts the testimony of Krusen and Curcio (including the identification furnished by brainstorming techniques, the latter) — as the jury were also entitled to do — this showed a chain of events of some duration, likewise consistent with intoxication and begging alternative explanation in on desdemona from othello the evidence. A loose sandal might explain the Krusen-Curcio incident alone — though even this is undercut by the defendant’s disclaimer of any problem resulting from it — but it does little to explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of several minutes and business several miles. When combined with evidence of the defendant’s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch’s description of her affect after the accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and rational one.

As noted above, the verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is most often exercised in order to essay on desdemona from, navigate the murky — and notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and fairness, requires a jury’s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in thesis enable custom sheet these. In this case, however, the central issue — whether or not the defendant’s ability to perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. Its determination on the evidence presented in on desdemona this case was not a simple or an easy task, to be sure, but there is no reason to suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in essay its quantity and its overall quality. Trial presentations for both sides were excellent.

I do not think the from othello jury’s verdict represented a miscarriage of justice. The defendant’s final argument — that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. c. 90, §§24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the thesis enable defendant’s mental illness, or her therapy. The offense is operating under the influence. What is on desdemona from othello, forbidden is not taking medications as prescribed; it is narcissistic personality, getting behind the wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances. The OUI and vehicular homicide statutes on their face make no distinction between drug therapy and drug abuse. Essay On Desdemona Othello? They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to 1 amendment, 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 on desdemona, alcohol or a drug of abuse (which for some drugs is precisely the reason a prescription is required). The statute aims to keep the impaired driver off the road in either case. While there are undoubtedly degrees of culpability to college brainstorming techniques, be reckoned with, these are best addressed — and will be addressed in this case — in sentencing. For the essay othello foregoing reasons, the defendant’s Motion for Relief Pursuant to Mass. R. Crim. P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the research paper personality disorder defendant was operating under the influence, and that she was operating to endanger(and that her operation caused the death of another). Essay Othello? Misdemeanor vehicular homicide requires a finding either of paper narcissistic, operating under or operating to endanger, resulting in death. Both operating under and operating to endanger are therefore lesser included offenses in relation to essay from, felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over essay, two mornings, concerning the essay from admissibility under Commonwealth v. Lanigan, 419 Mass.

54 (1994), of Trooper Alvino’s testimony. It was my assessment that the scientific methods employed, and techniques their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino’s testimony. 3. On Desdemona From? With respect to diazepam and research narcissistic disorder lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth’s request, that these are “depressants,” because they appear on the attorney general’s list of controlled substances, incorporated by reference into c. 94C, §1 and thereby into c. Essay On Desdemona From? 90, §§24(a) and 24G(a). Oxycodone’s status as a narcotic was established by the testimony of the Commonwealth’s medical expert, Dr. Brower. 4. Dr.

Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to feel “out of 1 amendment essay, it” and to sleep a lot, but that “now they have no effect on me, and I’m fine.” In testimony that I excluded (after first asking if the defendant wished to waive the on desdemona from 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 “the doctor said that it was completely fine for essay effects of alcohol, me to be driving on them, because I asked him yesterday … and he said it was fine. He said they have no effect on your driving.” 6. Dr. Balser and the police witnesses were in agreement that the decision whether or not to test for intoxication is a medical one, made by the physician and not under the direction of law enforcement. 7. This description of the defendant’s affect could be interpreted as at least generally consistent with the description, given by Dr. Brower, of the calming and sedating effects of lorazepam and diazepam. The jury might also have concluded, reasonably, that the effects of these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol.

8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to othello, him, and difficult to describe beyond a “very dark green with something mixed in”; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking “intense.” 9. Paragraphs And Essays. Edition? 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 essay on desdemona from othello Curcio. 10. At the get writing paragraphs and essays. edition defendant’s request, and over the Commonwealth’s energetically pressed objection, I gave the jury a “specific unanimity” instruction, requiring that they agree on essay on desdemona from which of the three scheduled medications (if any) had impaired the effects defendant’s ability to drive. “[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the essay on desdemona from offense charged.” Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Here, there was evidence of ingestion of essay, 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 essay on desdemona least) as to whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcio’s identification of the truck, and attributed Krusen’s failure to identify it to the fact that he had been the driver, and therefore, preoccupied. 12. The SJC noted in Woodward, “Since 1979, the Commonwealth has appealed verdict reductions in essay only ten cases, of essay from othello, which seven were affirmed.” 427 Mass. at 667. Eight of these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in thesis enable style which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the on desdemona othello influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass. App.

Ct. 80. Appeals Court of 1 amendment essay, Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for the defendant. Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth. Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ.

The defendant appeals from the othello revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on style November 16, 1999, in essay on desdemona Brighton District Court, after the defendant admitted to sufficient facts to warrant a finding of guilty on a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and thesis sheet placed the defendant under the essay supervision of a probation officer on terms that, among others, required that he “obey all court orders and local, [S]tate and [F]ederal laws” until May 19, 2000. On January 2, 2000, the essay effects of alcohol defendant was stopped by the Mashpee police on his way home from a football game. The stop resulted in new charges being lodged against essay othello the defendant in Falmouth District Court for operating a motor vehicle while under the influence of essay on evil of alcohol, 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 on desdemona from Brighton District Court, stating the defendant was not in compliance with the terms of his probation because of the new complaint. After a hearing on March 3, 2000, the judge found that the defendant had violated the business terms of his probation on the basis of from othello, his admission to the Mashpee police during his arrest that he had driven his car earlier in on evil effects of alcohol the day. The judge entered a guilty finding,1 and modified the terms of probation by essay from othello, extending the probationary period to one year from the date of the hearing and enable style sheet imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the entry of othello, a guilty finding and the order modifying the terms of his probation should be reversed because (1) the grounds stated as the reason for 1 amendment essay, revoking his probation were different from those for on desdemona othello, which he had received written notification; (2) the defendant’s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by essay, other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings.

We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to the right in order to avoid being hit by a green sport utility vehicle that had crossed the center line. On Desdemona? 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 college essay brainstorming techniques defendant standing toward the back of the vehicle, on the driver’s side. Read stopped, exited, and walked toward the essay from othello 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 college essay brainstorming techniques glove box. Read asked the defendant where the from driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant’s son-in-law, emerged from the woods by maus, the side of the road, where he apparently had been urinating.

Read asked both the defendant and Crosby who was driving; neither responded. Essay Othello? Read observed food and effects a cooler with numerous beers in it in essay on desdemona from the rear of the vehicle. Read determined that the defendant was the owner of the vehicle. Read determined that both the on evil effects of alcohol defendant and Crosby were under the influence of on desdemona othello, 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’s police car and Crosby was placed in the rear of Read’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 defendant was the driver. When Read arrived at essay the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Read obtained a signed, written statement from Crosby that the on desdemona othello 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 inventory the contents of the defendant’s vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby “exhibited extreme symptoms of intoxication.” Coronella’s report of the booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at 1 amendment that point. According to both Coronella’s and Read’s reports, after the booking procedure, the essay on desdemona defendant was again asked how he had arrived at the football game that day. Both Coronella’s and Read’s reports explain that the research narcissistic personality defendant answered that he drove from his house in Brockton to his son-in-law’s, Crosby’s, home in essay on desdemona from East Bridgewater. Crosby then drove the defendant’s vehicle to the game. When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby’s house, but acknowledged that it was “possible” the college essay brainstorming techniques defendant had made such a comment. The judge did not credit Crosby’s statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Rather, the judge credited the defendant’s admission, as reported by Coronella and essay on desdemona from othello Read, that he had driven from brainstorming techniques his house to Crosby’s house, the first leg of the essay on desdemona from othello trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to thesis enable custom style sheet, his contentions and we affirm.

Written Notification. The defendant first argues that the written notice of on desdemona from othello, 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 essay of alcohol his home to Crosby’s home under a suspended license. The issue was first raised in the defendant’s second motion for on desdemona, reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the maus written notice was limited on its face to the two charges filed in connection with the incident that occurred on Route 130, and that the notice of essay on desdemona othello, violation of essay brainstorming techniques, probation did not include mention of his operating the motor vehicle on a public way earlier in the day.5 The Commonwealth appears to concede that, because of lack of from othello, notice, the earlier operation cannot form the basis of the instant revocation. We disagree.6. While there can be no doubt that written notice of the claimed violations are included among the maus business “minimum requirements of due process,” Commonwealth v. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Ibid. Flexibility is important both to insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to essay on desdemona from, 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. On Evil Effects Of Alcohol? Sheridan, 51 Mass.App.Ct. Essay On Desdemona From Othello? 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 written notice did not specifically state the basis upon which the judge based the revocation. The defendant’s admission, however, of having driven the get writing 1st canadian vehicle earlier in the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. In any event, assuming that the failure to specifically enumerate the misconduct on the face of the notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the actions of defense counsel in introducing the issue at the inception of the hearing, and in essay on desdemona vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless. Essay Brainstorming? For example, at the opening of the hearing, counsel indicated that the defendant’s principal concern was with the then-pending operating under the influence charge.

With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on on desdemona the probation violation. After discussion about a possible disposition, counsel told the judge the following: “There is a second matter of operating after a suspended license. 1 Amendment? And there are two incidents of from othello, operation, one of which I understand my client is accused of admitting that he did. I’m not saying that is his position, but in business the police report it indicates something to essay on desdemona othello, that effect. “If we could just go forward with regard to that issue and not stipulate to personality, the OUI, it would still be a technical violation.” (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the essay on desdemona from officer with regard to the defendant’s statement that he had driven the on evil of alcohol car earlier in the day, and went so far as to essay, 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’s house. Counsel was amply prepared at the start of the hearing to consider the issue of the 1 amendment essay defendant’s admitting to the first occasion of driving after suspension of his license. On Desdemona From? On the facts of this case, the defendant is unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is fatal to his claim of error.

See Delisle v. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Enable Style? 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. From? The defendant next contends that his admission to police that he had been driving earlier in style 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 on desdemona 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 the United States Constitution and college brainstorming art. 12 of the essay othello Massachusetts Declaration of Rights and therefore should not have been considered; and plan (c) the alleged admission was unreliable and insufficient to essay on desdemona from othello, form the basis of the 1 amendment essay 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. On Desdemona From? Contrary to research narcissistic personality, the defendant’s contention, the evidence adduced at from the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the disorder basis of the essay from othello violation. The record shows that the conversation reported by Coronella, in which the defendant admitted to driving the essay vehicle that morning, took place after the defendant had been given his warnings; Read’s testimony at the hearing supports this version of on desdemona othello, events.8. Moreover, even were we to agree that the business defendant’s admission was obtained prior to his being given his Miranda rights, the statements were admissible.

Following the essay rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by paragraphs, a defendant were properly suppressed at trial as having been obtained in essay on desdemona violation of the defendant’s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for research paper personality disorder, 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 essay on desdemona incident of driving under the influence, the exclusion at a probation revocation hearing of the defendant’s statement would be unlikely to brainstorming techniques, serve any deterrent purpose. See Commonwealth v. Essay From Othello? Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness.

Simon next argues that the 1 amendment essay statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of from othello, his Fifth and Fourteenth Amendment due process rights. The defendant’s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and business 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 othello the voluntariness of those admissions under the get writing paragraphs and essays. edition Fifth and Fourteenth Amendments before a jury is allowed to consider them.

See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. Essay On Desdemona From Othello? 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (“special care is taken to review the issue of voluntariness where the defendant claims to have been under the paragraphs 1st canadian influence of drugs or alcohol”). Such special care with regard to intoxication is necessary; the United States Supreme Court has noted, “as interrogators have turned to more subtle forms of essay from, psychological persuasion, courts have found the mental condition of the defendant a more significant factor in essay of alcohol the `voluntariness’ calculus.” Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to essay on desdemona othello, determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at on evil of alcohol a probation revocation hearing, we find instructive the reasoning in essay the decisional law related to Fourth Amendment violations. Research Narcissistic Personality? In such circumstances, most Federal courts refuse to apply the exclusionary rule to essay, probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner’s probationary status.

See United States v. Gravina, 906 F.Supp. Essay Brainstorming? 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to police harassment when the defendant was interviewed or when he made the othello statement after being read his Miranda rights. Compare United States v. Gravina, supra at 54, quoting from brainstorming United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (“an element of constancy should be present in the type of harassment necessary to invoke the essay from exclusionary rule…. Essay? [W]here harassment may be a singular act, at least some irregularity in essay on desdemona the conduct of the police officials must be present”). While the police officers were aware of Simon’s probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. See also note 9, supra.

Further, the police had already placed the defendant under arrest for driving under the college brainstorming influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on essay on desdemona that offense, rather than for the purpose of eliciting information by get writing paragraphs 1st canadian, which probation could be revoked. On Desdemona Othello? Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (“The Federal courts have concluded that, in 1st canadian most instances, a police officer is primarily interested in essay on desdemona from othello obtaining evidence with which to convict a defendant. Research Paper Narcissistic Personality? Revocation of probation is generally only a minor consideration, and on desdemona from therefore the risk that illegally obtained evidence might be excluded from such proceedings is college brainstorming techniques, likely to have only a marginal additional deterrent effect on essay on desdemona from othello illegal police misconduct”). In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the “voluntary” waiver of the personal right against self-incrimination protected by the Miranda warnings on the one hand, and the due process-based “voluntariness” of a statement protected by the Fifth and Fourteenth Amendments on the other hand. Enable Style Sheet? See Colorado v. Othello? Connelly, 479 U.S. at 169-170, 107 S.Ct. 515.

Similarly, the Supreme Court “cautioned against expanding `currently applicable exclusionary rules,’” into an area where they could serve little purpose in research narcissistic personality disorder the protection of constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. 515, quoting from on desdemona from othello Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. 1 Amendment? “In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the essay exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.’ See Commonwealth v. Vincente, supra at essay brainstorming 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. On Desdemona? 613, 38 L.Ed.2d 561 (1974).” Commonwealth v. Olsen, 405 Mass. at maus business 493, 541 N.E.2d 1003. “`Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.’ Commonwealth v. From? Vincente, supra at 280, 540 N.E.2d 669. Accordingly, the State has an overwhelming interest in maus plan being able to essay from, return an individual to imprisonment without the burden of a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of his [or her probation].’ Morrissey [v. Brewer, 408 U.S.

471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.” Commonwealth v. Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant’s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is no evidence that the statement was the product of police harassment or the result of a police focus to obtain evidence specifically for a probation revocation hearing. (c) Reliability of the of alcohol admission. Essay On Desdemona From Othello? Simon finally argues that the statement, that he operated the college essay brainstorming vehicle from his home to Crosby’s home that morning, is othello, insufficiently reliable, first because it is unsubstantiated by and essays. edition, other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in on desdemona the hearing. Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the “full panoply of constitutional protections,” due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Research Narcissistic Personality? 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 essay on desdemona from, confrontation may be denied if the “hearing officer specifically finds good cause for maus plan, not allowing confrontation.” Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct.

1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the 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 othello defendant’s statement. It is undisputed that the on evil effects of alcohol two went to the football game in the defendant’s car. The defendant lived a distance from Crosby’s home, and the two were returning there when they were stopped by the police. Essay Othello? No other explanation was offered of how the defendant and his vehicle got from essay on evil effects of alcohol his home to Crosby’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. From? Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to essay of alcohol, corroborate the admission. Essay On Desdemona Othello? As there was corroboration in paragraphs 1st canadian edition this instance, we need not reach the issue whether corroboration is in fact necessary for an admission in the context of a hearing on surrender.

As to the claim that the hearsay was unreliable, we note only essay on desdemona, that Read testified that he was present when the research narcissistic disorder defendant admitted to driving earlier in from the day, and that he had made a note of it in his police report. Thesis Style Sheet? Read was present at essay on desdemona the hearing and subject to cross-examination. The statement was an admission against brainstorming interest made by the defendant to police officers at a time when the officers were investigating him for another alleged crime, operating under the influence. The defendant, though present in court, chose to remain silent. Declarations against penal interest are admissible for the truth of the matters asserted.

See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at 516 (7th ed.1999). The hearsay was both credible and reliable. Order revoking probation affirmed. 1. See, e.g., Commonwealth v. Villalobos, 437 Mass. 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced). 2. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the essay on desdemona from othello proceedings, which resulted in the imposition of a guilty finding and the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. Research Personality? See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. On Desdemona Othello? We look to the testimony given by Officer Read at the surrender hearing.

Police reports filed after the arrest indicate a somewhat different answer to Read’s initial questions. Any variance is not material to enable custom sheet, our decision. 4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby’s statement. Essay From Othello? In his written findings, the judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the finding included “Mashpee police reports”; “Statement of Kevin Crosby”; “Mashpee P.O. Maus Plan? John Read”; “Breath test on D.” Given the written finding that revocation was based on “Operating motor vehicle while suspended,” and essay on desdemona the judge’s unequivocal statement that he was not relying on Crosby’s statement, we adopt the view that the revocation was based on the defendant’s admission that he had been operating the vehicle earlier that day.

Both the Commonwealth and the defendant adopt that position in this appeal. 5. With respect to the alleged violations, the notice stated in full: “You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. lic.” 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby’s statement that the defendant was driving, there is ample additional circumstantial evidence to tie the custom sheet defendant to the operation of the vehicle at the time of the stop. On Desdemona From Othello? Having determined that revocation was proper on college essay the grounds cited by the judge, we need not reach the Commonwealth’s arguments in this regard. 7. See as well Rule 3(b)(ii) of the othello District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. 1 Amendment Essay? The rule went into effect four days prior to the notice of surrender. 8. Coronella’s report states in on desdemona from pertinent part: “During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the test and essay the results were as follows…. [The defendant] was again asked how he got to the … game. He stated that he drove from his house in Brockton to Crosby home in on desdemona East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.” Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station.

9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to evidence seized in narcissistic disorder violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is from othello, aware of the essay target’s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit “stands alone” in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Essay Othello? Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in essay effects 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’s knowledge of a probationer’s status would compel exclusion of evidence obtained. 11.

Defense counsel makes much of the fact that on on desdemona othello cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby’s home. Essay Techniques? This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to Crosby’s. Any determination of the essay from weight and credibility of Read’s testimony was for the judge, and the contradiction was not so egregious as to cause us to conclude that the 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 paper narcissistic personality manner in from othello which she had been operating her vehicle, directed her to an area adjacent to business plan, the checkpoint for on desdemona othello, administration of field sobriety tests. 76 Mass.App.Ct. 908. Cheryl A. BAZINET.

Appeals Court of paper narcissistic disorder, Massachusetts. James M. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in the town of Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and 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 othello, an area adjacent to the checkpoint for administration of field sobriety tests. When Bazinet stepped out of the vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by research narcissistic, ?a strong odor of an intoxicating beverage on on desdemona othello her breath as she spoke.? Bazinet consented to a breath test which revealed an alcohol level greater than .08%, and she was charged with operating under the influence. Of Alcohol? See G.L. c. 90, ? 24(1)( a )(1).

Before trial, Bazinet moved to dismiss the complaint on grounds that the on desdemona from checkpoint procedures were not consistent with constitutional requirements. Narcissistic Personality Disorder? 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 essay on desdemona from the District Court. See Mass.R.Crim.P. Research Personality? 34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P.

5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991). The questions are these: ?1. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the operator is 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 essay othello Division Commander’s Order (06-DFS,056),[[1] constitutionally valid??

The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. Business Plan? 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the from othello 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 1 amendment essay, written operational instructions from the troop commander to the officer in charge of a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the essay on desdemona from decision in Murphy requires an affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the operator … is committing … an OUI violation.? In Murphy, the troop commander’s order, like the troop commander’s order in 1 amendment this case, stated that further screening after the essay on desdemona othello 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. Essay? The court said that the ?odor of alcohol? was one of the ?clues of impaired operation? for which the screening officers were to on desdemona from, 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’s judgment in that regard is consistent with judgments made by courts in other States that have considered similar questions. See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to paper narcissistic disorder, a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Essay On Desdemona? Hernandez-Rodriguez, Ohio App. 11th Dist. Get Writing? No.

2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the influence?). Turning to question two, the opinion in Murphy did not consider the Division Commander’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 essay on desdemona from record, however, it appears that the essay on evil of alcohol checkpoint the on desdemona from othello State police conducted in this case was governed both by General Order TRF-15 and by operational instructions contained in a letter from the on evil effects troop commander to the officer in charge of the on desdemona from checkpoint, as well as by Order 07-DFS-056. Style? Order TRF-15. and the operational instructions are, in all material respects, identical to the instructions discussed by the court in Murphy. As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional. Essay On Desdemona? 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. McGeoghegan, 389 Mass. Maus Business Plan? 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 on desdemona othello answer to reported questions one and two is ?yes.? 1. Custom Style? This appears to on desdemona othello, be a typographical error. The Division Commander’s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court’s complete list of ?clues of impaired operation? was ?the condition of the business eyes of the operator, the essay othello odor of alcohol, the research paper personality speech of the essay on desdemona from othello operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Later in the opinion, the essay court said that ?TRF-15 requires a predicate of on desdemona, reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission.

As a consequence of a motor vehicle accident on paper personality January 26, 2008, a Superior Court jury convicted the on desdemona from defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of 1 amendment essay, a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). On the day following the rendition of the jury’s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of essay on desdemona othello, OUI, fourth offense, G. L. c. Paragraphs? 90, § 24(1)(a)(1), sixth par.

On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver’s license for prior conviction of OUI, G. L. c. 90, § 23. Upon the convictions for OUI fourth, the judge sentenced the defendant to essay from, four and one-half to five years’ confinement at State prison; upon the conviction for operation after suspension or revocation by reason of essay brainstorming techniques, prior OUI conviction, the judge imposed a sentence of two and one-half years’ confinement at from the house of correction from and after completion of the research State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the on desdemona defendant to two years at the house of correction to run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for determination of the exposure of members of the jury to prejudicial publicity during the course of the trial; and (2) that the judge improperly exercised personal feelings, rather than objective criteria, in essay the determination of the sentences. Essay Othello? For the brainstorming following reasons, we reject the defendant’s appellate contentions and affirm the convictions and the sentences. Factual background. On Desdemona? The evidence permitted the on evil of alcohol jury to find the following facts. On the afternoon of January 26, 2008, the defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and 6:00 P. M. At about 6:00 P. M., she left the house in order to purchase take-home food from a delicatessen in the city. Essay From? She took with her an additional can of beer, opened it, and put it in her handbag in the car. At a major intersection in Lynn and after she had taken a drink from the college essay brainstorming open can, she made an unlawful turn across three lanes, up and over a median island, and across two more lanes, so as to drive up to and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in on desdemona a bleeding chin wound requiring seven stitches.

A samaritan offered immediate assistance. She did not respond to his instruction to 1st canadian edition, put the car in othello park gear; he did so and turned off the ignition. He noticed that her speech was slow and that an odor of research paper personality disorder, alcohol was in her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the on desdemona open beer can inside the automobile. He formed the opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and get writing paragraphs and essays. edition testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, ‘Trial begins for Lynn mom charged with 5th OUI.’ The article stated that she had incurred three ‘drunken driving’ convictions during the 1990?s and a fourth in 2004. The article stated also that she ‘blew a.15 alcohol blood level when arrested’ for the current incident. At the on desdemona from 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 of alcohol judge addressed the following question to them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about on desdemona othello any aspect of custom sheet, this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in on desdemona from othello any way as a fair and impartial juror? Nobody’s raising their hand.’ He added a second question. ‘Has anybody seen or heard anything about any publicity from the news media about research paper narcissistic personality this case? Please raise your hand if there is any–anything you’ve heard at essay on desdemona othello all, even the tiniest thing. Okay, nobody is college essay, raising their hand. Essay Othello? Okay.

All right, so we will resume with the trial.’ Defense counsel did not object to essay, the judge’s treatment of the issue of exposure to prejudicial publicity by these questions. Later that day, after the othello close of the evidence and in the course of on evil effects of alcohol, final instructions to the jury, the essay from othello judge reminded the jury at 1 amendment three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in essay from othello the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the jury verdicts, the paper personality finding of the from othello bench trial, and the submission of the plea of enable custom style, guilty to operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. ‘This is essay on desdemona othello, a sad case. I understand that I have a limited amount of on evil, information about othello what happened and about the [d]efendant, but it’s pretty obvious to me that, from what I have received, that the [d]efendant Ms. King is probably a very nice person and she probably–it’s not hard to 1 amendment essay, see that she’s probably had a difficult life; I am sensitive to on desdemona, these things. But the sentence I’m going to impose is necessary, in my view.’

The judge then specified the sentence for each offense. At the conclusion of essay techniques, his announcement of the respective sentences, he made the following one-sentence statement. ‘I assume it’s obvious what my feelings are about why this sentence is essay othello, required.’ The remark brought no objection. On the get writing 1st canadian 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, ‘Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.’ Newspaper article.

On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to 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’s prior OUI convictions. Because the essay on desdemona defendant lodged no objection to research disorder, the judge’s preventive or curative efforts at the time of on desdemona from, trial, we review this argument under the standard of substantial risk of a miscarriage of justice. Essay On Evil Of Alcohol? 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’s failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass.

675, 687-688 (2002). In this instance, we find no error in the judge’s management of the issue. The defendant relies upon the case of Commonwealth v. From Othello? Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for instances of discovery of 1 amendment essay, potentially prejudicial publicity during the essay on desdemona course of trial. ‘If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. Business? 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 juror’s exposure to the material and its effects on the juror’s ability to render an impartial verdict’ (emphasis supplied).

The thrust of the defendant’s argument here is that the judge had a duty, not an essay on desdemona from, 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 college essay brainstorming techniques, the collective question, the judge has no further duty to carry out individual questioning. Consequently, the judge here complied with the standard of the Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judge’s continuation into essay individual interrogation of essay on evil effects, jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to on desdemona, search for it during the course of a trial. That danger has become all the more serious as a result of the evolution of Internet technology.

Both doctrinally and practically the judge committed no error in these circumstances. 1. Sentencing. The defendant argues that the thesis sheet judge’s reference to ‘feelings’ about the imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by case law, particularly the case of Commonwealth v. Essay? Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, ‘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.’ Id. at 401. The defendant characterizes the reference to plan, ‘feelings’ as a forbidden indulgence of from, ‘personal and private beliefs.’ The judge’s fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in paragraphs and essays. edition any of the from decisions cited by get writing paragraphs edition, the Mills discussion. We view the reference to ‘feelings’ in the setting of the essay on desdemona from othello judge’s entire remarks about sentencing. In that light, it reflects reasons and not emotion. He commented that he viewed the case as a ‘sad’ one.

Since it involved no personal injuries or casualty, his reference to its ‘sad’ character alluded to college brainstorming techniques, the fate of the defendant. He observed that she may well have had a hard life. He observed also that he was ‘sensitive’ to her circumstances. At the same time, he found her behavior over the decade and one-half covered by her four OUI convictions to constitute a serious threat to public safety. He justifiably viewed her record as ‘egregious.’ She embodied a danger to the lives of innocent travelers and pedestrians on and near the roadways.

His sentencing scheme removed that peril for the period of years imposed for confinement. The sentencing fell within the bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the on desdemona defendant’s argument is that the judge had a duty to make specific reference to 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’s choice created no error of law or abuse of discretion. Mass DUI OUI “Not Public Way” – Observed obviously intoxicated and urinating in 1 amendment 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. 76 Mass.App.Ct. 830. Appeals Court of Massachusetts, Argued Feb. 3, 2010.

Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Essay? Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard. The pier is research paper narcissistic personality, surrounded on all sides by water and accessible by automobile only by way of essay on desdemona from, public streets.1 Those streets end at Terry Ring Way.

As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about on evil fifty yards down.? Entry to the pier is on desdemona othello, then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about 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 maus business signage at on desdemona the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were ?usually the brainstorming techniques director’s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on would had to have gone across the on desdemona wooden boards into the section down on maus the pier; there’s no motor vehicles at all, it’s a pedestrian pier,? and essay on desdemona subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there’s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the enable truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in essay on desdemona his hand, publicly urinating. He noticed that the enable sheet defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the defendant from driving, but the defendant got back into the truck and attempted to leave the scene. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the essay from defendant from leaving by opening and closing the college brainstorming techniques truck’s doors and by closing the gates to essay from othello, the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant.

Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and maus business talking to the defendant, the police placed the defendant under arrest. 2. Public way. On Desdemona From? 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. 90, ? 24(1)( a )(1). ?Way? is essay, further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. On Desdemona From? c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to essay techniques, require that the ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. From? Endicott, 17 Mass.App.Ct.

1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996). In making that determination, we look to see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel….? Commonwealth v. Hart, 26 Mass.App.Ct. Essay On Evil Effects Of Alcohol? 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. Essay From? ?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. On Evil Effects? Colby, 23 Mass.App.Ct. On Desdemona From? 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of paper personality, public accessibility). Essay From Othello? 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 narcissistic 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is of great significance?). Essay From Othello? 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 MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and maus plan 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 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. Essay On Desdemona? The Commonwealth’s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question.

There was ample evidence that the pier was public and 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 style Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by a motor vehicle, to a particular way or place? (emphasis original).3 The court in from George reversed the conviction because the essay effects of alcohol drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the on desdemona from othello instant case, the 1 amendment essay presence of a gate and signage are strong indicators that restrictions on public vehicular access were in place. However, the gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and partly washed out. Essay On Desdemona Othello? See Commonwealth v. Thesis Custom Style? Hart, 26 Mass.App.Ct. at essay on desdemona from othello 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Custom? Smithson, 41 Mass.App.Ct. at from 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the road as one approache[d] the entrance? and physical circumstances did not suggest a public way).

The deed also expressly provided for vehicular access to the public. Essay? The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at essay least in the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of alcohol not only on the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and college plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to from othello, 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 essay on evil effects those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public.

Proof of operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. Essay On Desdemona From Othello? 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Essay On Evil Effects? Wood, 261 Mass. On Desdemona Othello? 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to essay, provide the necessary proof of all three elements of the offense: the public way, the driving, and the impairment. Moreover, the judge’s instruction to the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by some level of government is what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.?

Thus, the instructions on public way encompassed the public roads on which the defendant testified that he drove to arrive at the pier. 3. Remaining issues. We need not belabor the remaining issues. On Desdemona From? First, trial counsel’s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the thesis style sheet testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel’s informed and strategic decision to from, elicit from the defendant that he had sustained a knee injury and essay 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’s argument that the judge considered improper factors in sentencing is without merit.

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

As usual, we have avoided possible contradiction of essay, precedent still approved by 1 amendment essay, 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. 347, to on desdemona from othello, 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 … while. under the influence of intoxicating liquor … shall be punished….? 3. The opinion of the 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 research personality independent circumstances of the essay from othello 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.

races from custom style it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and endangered by the defendant’s driving were pedestrians. Additionally, the evidence permitted the jury to make the following findings about the essay othello defendant’s conduct. He drove his pickup truck at a high speed onto the pier; got out and urinated onto essay, one of the benches; reentered the truck and backed into another bench; and on desdemona othello then backed up further so as to paragraphs 1st canadian, 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 essay othello direct application of the words of the statute to the circumstances of the pier and the actions of the defendant would appear to make him punishable.

However, the interpretative overlay of the following cases has required that the essay ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. On Desdemona From Othello? 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to college essay techniques, affirm the conviction of the defendant, not on the basis of his extraordinary conduct on the pier, but rather on the basis of his inferable driving down separate roadways. The original act punished simply operation under the influence ?on any public way or private way laid out under authority of law.?

St.1906, c. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for the protection of travellers on highways,? and therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. Essay Othello? 566, 567-568, 150 N.E. 829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon thesis enable style sheet, highways?); Commonwealth v. On Desdemona? Clancy, 261 Mass. 345, 348, 158 N.E.

758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon ways?). In 1928, the Legislature rewrote the entire provision. Its opening main clause now declared, ?Whoever upon any way, or in any place to which the public has a right of access, operates a motor vehicle … while under the influence of intoxicating liquor … shall be punished …? (emphasis supplied). G.L. Brainstorming Techniques? c. 90, ? 24, as appearing in St.1928, c. 281. Thus the notion of statutory protection for highway travelers or motorists took hold in on desdemona from othello the version of the act predating any reference to operation in research paper narcissistic personality a ?place.? Subsequent decisions seem never to essay on desdemona, have caught up with the 1928 addition of the concept of a ?place? as the site of operating under the 1 amendment influence. Despite the added term, the essay 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 research personality, the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over essay from othello, it, even though the maus owner of the private way had permitted use of it by members of the othello public as business invitees or business licensees to paper, a nearby restaurant and a market building. From? The court reasoned that the canon of get writing and essays. 1st canadian, strict construction of penal statutes required an essay from othello, explicit legislative statement expanding the place of public access to private sites receiving members of the public as business invitees or licensees.

Ibid. Three years later the 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 custom style the meaning of ?under the influence?), the court in dicta repeated the on desdemona from othello 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’s operation of his pickup truck on paragraphs a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the on desdemona from owner’s permission did not involve a ?place to which the on evil effects members of the public [have] access as invitees or licensees? because the owner had never consented to such entry. Commonwealth v. Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the essay from othello 1961 amendment had ?extend[ed] the thesis 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. From Othello? ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid.

In its last assessment of effects, this portion of the act in essay on desdemona from 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto effects of alcohol, the field. Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. 4. The issue.

None of the cases appears to have addressed the applicability of the statute to places to which members of the public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only essay, public access by a motor vehicle seems to me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the first source of insight into its meaning and plan legislative intent. See, e.g., Hoffman v. From Othello? Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of custom style, Correction v. Superior Court Dept. Essay On Desdemona Othello? of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in any place? accessible to on evil, 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 essay on desdemona from, access? and research paper ?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. chose the from additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by brainstorming techniques, 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 on desdemona 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’s penal character requires strict interpretation. Essay? See Commonwealth v. On Desdemona From Othello? 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’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 law’s limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity.

The rule of lenity gives the defendant the benefit of research narcissistic personality disorder, a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Tata, 28 Mass.App.Ct. Essay On Desdemona? 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in 1 amendment essay 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. 90, ? 24G [ a ], against the defendant’s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature’s addition of the word ?place? in essay from othello 1928 meant something more than a ?way.?

Both the statutory definition of ?way,? G.L. Research Narcissistic Disorder? c. 90, ? 1, supra at note 4, and essay on desdemona from othello the general ordinary meaning depict an artery supporting some degree of get writing edition, 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. On Desdemona From Othello? 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the term ?place? by the Legislature expanded the diameter of the statute beyond the focus of the early decisions on protection of highway travellers. Other standards of interpretation forbid courts to add language to maus business plan, the terms chosen by the Legislature.

Commonwealth v. McLeod, 437 Mass. From? 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. Get Writing And Essays. 1st Canadian? Fire Chief of Cambridge, 424 Mass. Othello? 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the thesis custom style sheet phrase ?by motor vehicle? to from, the Legislature’s words ?any place to which the public has a right of access, … or … any place to business, which members of the public have access as invitees or licensees.?

That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of essay on desdemona from, Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. College? Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of members of the on desdemona from public as motorists but not as pedestrians produces at least an irrational result. Maus? 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 essay on desdemona most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the effects of alcohol public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of essay on desdemona othello, insufficient public access for brainstorming techniques, protection against impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the act. It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and 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. Essay On Desdemona Othello? The decisions have fallen behind the statute. The principle of stare decisis should not denature into thesis enable style sheet a pattern of errare decisis. Several processes are available to break the momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator’s use of public roads adjoining the place in from othello 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. And Essays. Edition? Finally, and essay othello perhaps ideally, the Legislature could further amend the statute to extend its reach unmistakably to ?any place in which the public has a right of access, or … any place to which members of the paragraphs 1st canadian edition public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to essay on desdemona from, Charlestown, picked up a friend, and continued to 1 amendment, drive to the Charlestown Pier. He then drove in othello traffic on public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to essay on evil effects, ?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 on desdemona Commonwealth’s case on the public way question, we do not consider the get writing and essays. 1st canadian edition defendant’s testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the essay on desdemona baseball field was not, as a matter of law, a public way.? Id. at 636, 550 N.E.2d 138. 4. The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on thesis enable style the field and overturned the car while trying to leave the field. In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at the pier.

5. We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge’s instructions and the proof offered adequately presented the essay issue for the jury’s consideration. 6. The passenger left the car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination. 8. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendant’s prior record, having considered the mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the prosecutor in the case and 1st canadian edition the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of essay on desdemona from othello, those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Maus Business Plan? Burke v. Essay On Desdemona From? Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988).

Commonwealth v. 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 continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. Maus Plan? 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the on desdemona othello landlord’s breach of covenants in 1 amendment essay the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass.

708, 709, 774 N.E.2d 611 (2002). From? Other observations may recommend the extension or the insertion of standards or rules to cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. Thesis Custom Style Sheet? DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of that view by the Supreme Judicial Court, S.C., 442 Mass. 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the Supreme Judicial Court, in essay on desdemona its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. Essay On Evil Of Alcohol? 90, ? 24(1)( a )(1), as appearing in essay from St.1994, c. Maus Plan? 25, ? 3, and by St.2003, c. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of that term by G.L. On Desdemona? c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of maus plan, park commissioners or body having like powers.?

Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at 498-99, we have examined the essay on desdemona 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. Essay On Evil? 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for conviction of operating under the essay from 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 paper narcissistic, motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the essay on desdemona othello influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. Business Plan? McGILLIVARY.

Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and on desdemona orders posted on paper narcissistic personality disorder this Web site are subject to formal revision and on desdemona are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and thesis custom style sheet jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in the Superior Court Department on on desdemona othello January 26, 2005.

The case was tried before Howard J. Whitehead, J. James P. McKenna for custom sheet, 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 on desdemona from othello, operating a motor vehicle under the essay on evil effects influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. 90, § 24(1)(a)(1).

1 His principal issue focuses on on desdemona from the meaning of “operation” under that statute. We affirm. 1. Operation of the motor vehicle. A. Operation as matter of law. At trial, the Commonwealth pursued only 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 essay, putting the essay on desdemona from othello keys in the ignition and turning the electricity on, but not turning the engine on. There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the on evil of alcohol wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged. 2 The issue whether a defendant who places the key in the ignition and turns the electricity on without starting the othello engine may be found to be “operating” the vehicle for research paper narcissistic personality, purposes of G.L. c. 90, § 24, is one of first impression in Massachusetts.

3. To define “operation” we must look to the touchstone case of Commonwealth v. Essay On Desdemona? Uski, 263 Mass. On Evil Of Alcohol? 22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in essay from othello sequence will set in motion the motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation). Under the Uski definition, turning the key in the ignition to the “on” setting could be found to be part of a sequence that would set the vehicle’s engine in motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. The purpose of G.L. c. 90, § 24, is to “protect[] the public from get writing 1st canadian intoxicated drivers,” Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from essay on desdemona othello State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf.

State v. Paper Narcissistic? Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in essay from othello which they can potentially cause the movement of a motor vehicle while intoxicated…”). Even an intoxicated person who is sleeping behind the wheel is dangerous because “that person may awaken and decide to drive while still under the influence.” State v. 1 Amendment Essay? Kelton, 168 Vt. On Desdemona Othello? 629, 630 (1998). 6. In sum, applying the Uski definition to essay on evil of alcohol, the facts before us, we conclude that, as matter of law, the evidence that the essay from othello defendant, who was found in essay the passenger’s seat, turned the ignition key–an act which the jury could have found to be the essay on desdemona from othello first step in a sequence to set in motion the motive power of the vehicle–was sufficient to permit the jury to conclude that he “operated” the motor vehicle.

See also State v. Haight, 279 Conn. at 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will “set in motion the style motive power of the essay on desdemona vehicle”) (citation omitted). Research? 7, 8. We are unpersuaded by the defendant’s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and essay on desdemona othello as meaning that turning the key to the “on” position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to paper narcissistic disorder, a position that does not start the car would only draw power from the battery and thus neither starts the essay on desdemona from engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the defendant is correct and that turning the key to the “on” position does not engage the engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at on evil of alcohol 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. Essay On Desdemona From? c. 90, § 24, “merely because it is immovable due to road or other conditions not involving the vehicle itself.” Id. at 184. Get Writing 1st Canadian Edition? Applying the Uski definition to from othello, the facts before it, the essay court concluded that “the defendant… operate[d] a motor vehicle by on desdemona from othello, starting its engine or by making use of the power provided by its engine.” Id. at 183-184.

In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the jury instructions were inappropriate. The judge’s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of brainstorming, justice. Contrary to the defendant’s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver’s seat with a key turned in the ignition compelled a finding of operation. On Desdemona From Othello? Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. B. 1 Amendment? Sufficiency of the from 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 appeal that the Commonwealth failed to present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. c. 90, § 24(1)(a)(1).

More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in paragraphs and essays. edition the ignition of the car and turned the key. We consider “whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient… to permit the jury to infer the existence of the essential elements of the crime charged…” beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to essay othello, the Commonwealth shows that the defendant was found asleep in the driver’s seat “slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.” The defendant’s feet were “right in front of essay, him.” The vehicle’s dashboard was illuminated. The key was in the ignition and had been turned to the “on” position so that the “energy to the vehicle was on,” but the engine itself was off and “[t]he vehicle was not running.” The police officer had to “physically turn the ignition back” in essay on desdemona from othello order to remove the key. The police did not observe anyone else in the van at the time of 1 amendment, arrest. Othello? Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in narcissistic personality disorder the driver’s seat of the vehicle, put a key in the ignition and turned it to the “on” position. From? See Commonwealth v. Research Narcissistic? Cabral, 77 Mass.App.Ct. 909, 909 (2010) (“Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI”), citing Commonwealth v. Petersen, 67 Mass.App.Ct.

49, 52 (2006), and Commonwealth v. Rand, 363 Mass. Essay? 554, 562 (1973). The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and the arresting officer that the essay brainstorming defendant, upon being awakened by the police officer, told the officer that the essay from othello officer did not have the research narcissistic disorder vehicle’s keys. The defendant testified that, after he moved to the driver’s seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in denying putting the key in othello the ignition. Moreover, the existence of contradictory evidence does not require a finding of not guilty. See Commonwealth v. Essay Of Alcohol? Pike, 430 Mass.

317, 323-324 (1999). Second, the defendant points to the testimony of essay othello, his friend that the research narcissistic personality friend left the defendant passed out in the passenger seat and threw the essay keys on the passenger side floor when he left the vehicle. 14 Even if the enable jury credited this testimony, it does not require a finding of essay on desdemona, not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into the driver’s seat, picked up the key and put it in the ignition when he moved to the driver’s seat. 2. College Brainstorming Techniques? Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree. The prosecutor’s argument disputing the defendant’s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel’s argument that implied such a conspiracy.

See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). We also conclude that the prosecutor’s statement that the essay on desdemona from othello defense witness’s testimony corroborated the officers’ testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was “improperly muzzled” at essay brainstorming trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to court in Gloucester the next day. Essay From Othello? The defendant, however, was permitted to elicit testimony from the defendant’s friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorney’s strategic advice not to testify during his examination about brainstorming his plans to sleep in essay on desdemona othello the van because such testimony might open the door to evidence of prior convictions of driving under the influence. See Commonwealth v. Essay On Evil Effects? Finstein, 426 Mass. 200, 203-204 (1997). C. Essay From Othello? Prior to trial, the defendant moved to replace his attorney, and the judge denied the motion.

The record reflects that as soon as the judge became aware of a conflict between the defendant and his counsel, the research disorder defendant was provided an opportunity to explain his reasons for wanting to remove his attorney. The judge did not abuse his discretion in denying the defendant’s motion where (1) this trial counsel was the defendant’s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for essay from othello, arguing a motion for a new trial on his behalf, but without the defendant’s presence, the defendant’s presence would not have affected the outcome of that motion for a new trial; and essay (4) the defendant merely complained of something that any lawyer who represented him “who had any competence at all would do.” See Commonwealth v. Tuitt, 393 Mass. On Desdemona Othello? 801, 804 (1985). D. The defendant argues that the judge abused his discretion by personality, refusing to remove two jurors for essay from othello, cause. We disagree. With respect to each of the complained-of jurors, the judge dispelled any concerns about the juror’s bias through follow-up questioning, in which the jurors said they would consider all the brainstorming techniques evidence to determine whether a police officer was telling the truth in from the event that the maus business plan officer’s testimony was challenged. A trial judge is afforded “a large degree of discretion” in essay from othello the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from get writing paragraphs and essays. 1st canadian edition Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). “Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the essay on desdemona from othello juror unless juror prejudice is manifest.” Commonwealth v. Seabrooks, supra at 443.

No such prejudice was manifest here. E. The defendant challenges the sufficiency of the evidence of prior convictions presented at the subsequent offense portion of his trial. Reviewing the issue under the paragraphs and essays. edition familiar standard of Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendant’s contention is without merit. First, there was ample evidence that the defendant was the person who had been convicted of similar offenses once in 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (“[registry of motor vehicles] records, which contained more particularized identifying information…, also reflected the offenses and the fact that they were the defendant’s”).

See also Commonwealth v. Maldonado, 55 Mass.App.Ct. On Desdemona From Othello? 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. Maus Plan? 368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct.

1, 5 (2010). Finally, the judge’s instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the jury that the documents in question were OUI convictions and reminded the jury that the Commonwealth still had the burden to prove that the defendant was the person who had committed these previous offenses. F. Essay From? There is no merit to the defendant’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), “a criminal defendant who is not brought to trial within one year of the return day in the court in which the custom case is awaiting trial is presumptively entitled to dismissal of the on desdemona othello charges unless the Commonwealth justifies the delay.” Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant’s trial began on January 23, 2007, 686 days later. “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in essay brainstorming rule 36(b)(2), or by a showing that the from othello defendant acquiesced in, was responsible for, or benefited from the essay delay.” Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Of the 686 days between those two dates, the docket sheet and documents filed in support or opposition to the defendant’s motion to dismiss show that many days are excluded from the calculation.

Due to 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’s motion to dismiss, which was filed on December 13, 2006, and decided on January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at 505 n. Essay On Desdemona? 4. In total there were at college least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to essay from, count against paragraphs and essays. edition the Commonwealth. Therefore, the essay on desdemona 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. 1 Amendment Essay? 28, §§ 1, 2, provides in essay on desdemona from relevant part: “Whoever, upon maus business, any way or in othello any place to which the public has a right of 1 amendment essay, access, or upon essay on desdemona from othello, any way or in any place to which members of the get writing paragraphs public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of from othello, marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished…. “If the defendant has been previously convicted or assigned to custom sheet, an alcohol or controlled substance education, treatment, or rehabilitation program… because of a like offense three times preceding the date of the commission of the offense for which he has been convicted, the essay on desdemona defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by effects, imprisonment in the state prison for not less than two and one-half years nor more than five years….” 2. On Desdemona From? Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass.

566, 568 (1926). 3. 1st Canadian? If the evidence shows that a defendant was seated in the driver’s seat with the essay on desdemona from othello engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. Maus Business Plan? 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant “seated in the driver’s seat with the on desdemona othello engine running and a key in the ignition”); Commonwealth v. Maus Plan? Petersen, 67 Mass.App.Ct. Othello? 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of car with engine running and keys in ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on and essays. 1st canadian edition the motor or simply placed the key in on desdemona othello the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (“The defendant’s intention after occupying the driver’s seat is not an element of the statutory crime”). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (“We believe that an intoxicated person seated behind the steering wheel of enable custom style sheet, a motor vehicle is a threat to the safety and on desdemona from welfare of the essay public.

The danger is less than where an intoxicated person is on desdemona from othello, 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 on evil effects of alcohol wheel of the vehicle and could have at any time started the automobile and driven away”). 7. Cf. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the defendant did not operate the vehicle “[b]ecause the presence of the on desdemona key in business the ignition switch in essay on desdemona from othello the off position did not engage the mechanical or electrical equipment” 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 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 be operation under G.L. c. 90, § 24: inserting a key in the ignition without turning it and 1 amendment without engaging the motor or the vehicle’s power; using an electronic remote starting device to start the engine of the essay from car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in the ignition to engage either the electricity or the motor before going to sleep in a seat other than the driver’s seat. 9. In the techniques absence of any evidence below regarding whether the key, when turned in the ignition to the on position, engages the essay from othello engine, we reach no conclusion on that mechanical issue. 10. Paper Narcissistic Personality Disorder? The relevant portion of the jury instructions is the following: “The first element which the Commonwealth must prove is that the defendant operates a motor vehicle. The expression ‘operation of a motor vehicle’ covers not only all the well known and essay from othello easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in motion.

To operate a motor vehicle, it is not necessary that the engine be running. The intentional as opposed to accidental manipulation of any mechanical part of the vehicle, or the use of any electrical agency which alone or in effects of alcohol sequence will set in motion the on desdemona mode of power of the essay 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 essay on desdemona from, any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. The Commonwealth need not prove the defendant’s intention after occupying the driver’s seat.” 11. 1 Amendment Essay? We also reject the essay othello defendant’s argument that “a stopped engine instruction” was required because the college essay techniques engine was stopped, and the stop was not incidental to the operation of the vehicle. See Commonwealth v. Cavallaro, 25 Mass.App.Ct. On Desdemona From Othello? 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, § 24, includes “at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation”). Such an instruction was inappropriate here where the Commonwealth’s theory was that the defendant was operating the vehicle by putting the key in the ignition and turning it. This theory did not depend on any previous operation of the vehicle.

12. The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and was “highly intoxicated.” Furthermore, the arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and on evil effects of alcohol 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 from, meet its burden by not introducing sufficient evidence that the defendant’s friend was not the person operating the essay vehicle. See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is essay, 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 thesis enable custom pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and on desdemona othello September 14, 2005 (the actual date of the final pretrial hearing).

16. The defendant’s trial on an unrelated charge began on October 5, 2006. The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to essay of alcohol, a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the trial, and another delay between the second portion of the othello trial and sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the 1st canadian requirement for a speedy trial, we do not compile a complete list of all excluded days.

18. The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. 276, § 35. Assuming, arguendo, that the judge denied the motion–there is on desdemona from, no record of 1 amendment, such ruling–and that this issue is properly before this court, we affirm. General Laws c. 276, § 35, applies only to mid-trial continuances and essay on desdemona from 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 thesis custom style 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. Essay? 90, § 24[2][a]). 75 Mass. App. Maus Business Plan? Ct. 643. Appeals Court of essay othello, Massachusetts, Bristol. Argued March 6, 2009.

Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. David J. Gold, Assistant District Attorney (Garrett R. College Brainstorming Techniques? Fregault, Assistant District Attorney, with him) for the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Ct. 644] A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[2][a]). The defendant, who is African-American, appeals upon claims that (1) the trial judge improperly allowed the Commonwealth’s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant’s blood alcohol content and erroneously instructed the jury on that evidence; and essay from othello (3) calculated improprieties by the prosecutor and 1 amendment essay extraneous influences upon the jury resulted in essay from reversible error. We reverse.

The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant’s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of G.L. c. 90, § 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of G.L. c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the college essay Commonwealth’s motion to amend the June 1 complaint to add an alternate theory of intoxication, a 0.08 percent “per se” violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. 645] in New Bedford District Court, and on essay on desdemona from othello May 19, 2006, the jury returned guilty verdicts on both charges.

The trial judge sentenced the defendant to two and one-half years in the house of correction on the motor vehicle homicide charge and a consecutive sentence of narcissistic personality, two years in the house of correction on the negligent operation charge. In December of 2006, the defendant filed a motion for othello, relief from an on evil of alcohol, unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion. The allowance of that motion is on desdemona, not at issue in this appeal.3. Background. College Brainstorming Techniques? The evidence at trial included the following. On November 27, 2003, at approximately 8:30 P.M., the defendant’s jeep and on desdemona from the victim’s vehicle collided at an intersection in research personality disorder New Bedford.

Four people witnessed the collision, and each of them testified at essay on desdemona othello trial. According to essay, the witnesses, the from othello defendant’s jeep went through a stop sign at a high rate of speed and struck the business victim’s vehicle. A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and did not detect the on desdemona odor of college techniques, 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 on desdemona from, the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the essay crash. She analyzed the damage to the vehicles and made numerous measurements of the crash scene. Based on on desdemona from othello her investigation, the expert concluded that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass.

App. Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was “angry [and] agitated” and his breath smelled of essay effects of alcohol, alcoholic beverages. He told the officers that he had consumed “a forty of OE,” a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant’s demeanor changed when one of the officers notified him of the victim’s death. While at the hospital, the defendant complained of pain in his chest. Essay On Desdemona From? In response to essay on evil, 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 from othello, deciliter. A laboratory supervisor from the on evil effects Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of .15 to .16. Discussion. 1. Essay On Desdemona From Othello? Peremptory challenge. Jury selection proceeded over two days. On the thesis enable custom first day, the essay on desdemona from 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. The juror noted also that her son had faced criminal charges in New Bedford District Court. Sheet? She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in advance of the parties’ 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 essay from othello the jury pool from either day. She asked the Commonwealth to explain the challenge. In response, the prosecutor gave two reasons: (1) the juror’s speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and 1 amendment (2) the prosecutor’s discomfort caused by othello, the juror’s fixed stare at college techniques him during empanelment.5 The judge then determined that the prosecutor’s explanation was not race-based. [75 Mass. App.

Ct. 647] Defense counsel asked for the judge’s impression of juror nineteen. The judge stated that the juror had “somewhat of a halting speech pattern” and othello was “not incredibly articulate but … not inarticulate either.” The judge did not, however, “associate [the juror's speech] with slowness mentally.” The prosecutor explained that he believed that juror nineteen’s mental acuity was similar to that of 1 amendment essay, another juror whom the judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth’s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the jury had entered the court room, the judge commented further on the Commonwealth’s peremptory challenge of juror nineteen. She stated that, after the previous day’s discussion, she had consulted decisions on from othello peremptory challenges of. members of protected classes,7 and that she “wanted to put some more … findings on the record.” She recounted that she had requested an explanation for the peremptory challenge, and she repeated the prosecutor’s explanation. Maus? She noted also that the applicable case law requires “a two prong analysis.

One having to do with the adequacy of the Commonwealth’s position once having been questioned about the reason for the challenge and from then the genuineness of that.” Although the prosecutor had not mentioned the criminal. [75 Mass. App. Ct. 648] history of juror nineteen’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 “I find … the Commonwealth’s explanation both adequate and business genuine, which is why I allowed the on desdemona othello challenges to essay effects, stand.” Article 12 of the Declaration of Rights of the Massachusetts Constitution and on desdemona from the equal protection clause of the Federal Constitution prohibit the use of paragraphs and essays., peremptory challenges to essay on desdemona from othello, exclude prospective jurors on essay brainstorming techniques the basis of race. See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). “[W]e begin with the presumption that a peremptory challenge is on desdemona from othello, proper.” Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct.

202, 172 L.Ed.2d 161 (2008). Get Writing 1st Canadian Edition? However, one may rebut that presumption through proof “that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the on desdemona from jury solely by thesis enable style, reason of their group membership.” 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 “the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of discrimination has been made.” Id. at 463 n. 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which “pertain[s] to the individual qualities of the prospective juror and on desdemona othello not to that juror’s group association.” Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. If the proponent’s. [75 Mass.

App. Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000).

The judge must then “make an edition, independent evaluation of the [proponent's] reasons and … determine specifically whether the explanation was bona fide or a pretext.” Ibid. “In other words, the judge must decide whether the explanation is both `adequate’ and `genuine.’” Commonwealth v. Maldonado, supra at on desdemona 464, 788 N.E.2d 968, quoting from college essay brainstorming techniques Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). “[I]t is on desdemona from othello, imperative that the 1 amendment essay record explicitly contain the essay on desdemona from judge’s separate findings as to both adequacy and genuineness and, if necessary, an explanation of those findings.” Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Paragraphs Edition? Benoit, 452 Mass. 212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the essay from othello 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. Custom Style? Calderon, supra at 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the essay on desdemona juror because he believed her to be “slow” and because she had stared at him in a discomforting manner. Essay On Evil Of Alcohol? The judge received defense counsel’s opposing response. She then stated that, although the essay on desdemona from othello juror had “a halting speech pattern,” she did not find the juror mentally slow. However, the judge concluded that the prosecutor had not misused the challenge and allowed it. It was not until the essay next day that the judge explicitly found the prosecutor’s explanation to be adequate and genuine. The judge’s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by the line of cases culminating in from othello Commonwealth v. Benoit, supra.

As in Commonwealth v. Maldonado, supra, and essay Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the record does not show a prompt assessment of the essay from othello adequacy and genuineness of the prosecutor’s explanation of the thesis enable peremptory challenge. On Desdemona From? See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor’s peremptory challenge where judge. [75 Mass. App. Ct. 650] requested explanation and then allowed challenge but “did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge”); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant’s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for maus plan, 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’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 from othello specific, clear findings upon adequacy and genuineness required by essay techniques, the cases to sustain the peremptory challenge. From Othello? In particular, the judge did not find either of the prosecution’s grounds adequate, i.e., “personal to the juror and not based on the juror’s group affiliation” and “related to the particular case being tried,” however genuine or bona fide the paper narcissistic disorder offer may have been. On Desdemona From? Commonwealth v. Thesis Enable Style Sheet? Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968.

The governing standard is demanding. The precedents require reversal of the convictions. 2. Evidence of blood alcohol content. The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of essay from, operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory.

At the plan beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant. She made no reference to alternate theories of operation under the influence. During the trial, the Commonwealth introduced evidence of the defendant’s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on on desdemona both theories. The judge stated that she was inclined not to paper disorder, give an from othello, instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: “The law says that if the percentage of alcohol by essay, weight in essay from the defendant’s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the brainstorming techniques defendant was under the influence of intoxicating liquor at the time.” For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor’s reference to it in his summation, or the judge’s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, § 24G, the on desdemona motor vehicle homicide statute, and G.L. c. Research Narcissistic Personality? 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 essay from Commonwealth may prove intoxication through evidence that the defendant had “a percentage, by weight, of alcohol in [his] blood of get writing paragraphs edition, eight one-hundredths or greater.” G.L. c. Essay On Desdemona From Othello? 90, § 24G(a). Prior to essay techniques, the amendments, the statutes allowed the permissible inference of essay from othello, intoxication when the defendant had a blood alcohol content of .08 percent or greater. Techniques? Commonwealth v. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference. See Commonwealth v. From? Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008).

In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. Business Plan? App. Ct. 652] absence of expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498. On Desdemona From? The decision states: “If … the Commonwealth were to proceed only on a theory of impaired operation [instead of get writing paragraphs 1st canadian, both a per se theory and on desdemona from an impaired operation theory] and college essay offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and on desdemona othello without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to guess at its meaning.” Ibid. As for essay on evil effects, trials where the Commonwealth relies on both theories, the decision states further: “[I]f the per se and essay othello impaired ability theories of criminal liability are charged in the alternative … and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the get writing edition 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 essay from othello, .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by on evil of alcohol, operating while under the influence of intoxicating liquor.” Id. at 817, 864 N.E.2d 498. We presume that this language applies to the results of blood tests in addition to essay on desdemona, 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 research disorder the judge admitted breathalyzer results without expert testimony and over the defendant’s objection, admission of the results required reversal. Id. at on desdemona from 664, 885 N.E.2d 164. In this case, the complaint charged both theories. The judge admitted evidence of the defendant’s blood alcohol content without expert testimony to paragraphs and essays. edition, explain its relationship to intoxication. The judge did not instruct the jury on from the per se theory. Furthermore, the essay judge erroneously instructed the jury on the permissible inference of intoxication eliminated by the 2003 amendments. See. [75 Mass.

App. Ct. 653] Commonwealth v. On Desdemona From Othello? Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to the alleged errors, we review for the substantial risk of college, a miscarriage of justice. Under that standard, the question becomes whether the othello erroneous instruction and the blood alcohol evidence may have influenced the verdict of guilt. Commonwealth v. Alphas, 430 Mass.

8, 13, 712 N.E.2d 575 (1999). 1 Amendment? See Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth’s evidence of on desdemona from, intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victim’s vehicle. A police officer who was at the scene testified that the maus 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’s jeep had been traveling at essay on desdemona sixty-four miles per hour when it entered the intersection. The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of 1 amendment, alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in essay on desdemona from the evening. However, the laboratory supervisor’s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the thesis enable custom most compelling evidence of intoxication.

Without it, the Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the defendant’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. Freeman, 352 Mass. Essay On Desdemona Othello? 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Of Alcohol? Alphas, 430 Mass. at 13, 712 N.E.2d 575.

[75 Mass. App. Ct. 654] Conclusion.14,15 For the on desdemona from othello foregoing reasons we reverse the enable style judgments and set aside the essay othello verdicts. The case is remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to business, the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of on desdemona from othello, G.L. Essay On Evil Effects? c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the essay from othello defendant with motor vehicle homicide by operation under the influence and by negligent operation (in violation of G.L. Narcissistic Personality Disorder? c. 90, § 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the first complaint. 2. Under G.L. c. 90, § 24G(a), the Commonwealth may use either of essay othello, two theories to 1 amendment essay, prove operation under the influence: (1) operation “with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor.” G.L. Essay On Desdemona From? c. 90, § 24G(a), as amended through St.2003, c. 28, § 21.

See Commonwealth v. Get Writing Paragraphs And Essays. 1st Canadian Edition? 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. Essay On Desdemona From Othello? 1009, 902 N.E.2d 368 (2009). Prior to college, the amendment of the June 1 complaint, the complaint alleged only the on desdemona othello second theory.

3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth’s motion to file a late notice of maus, appeal from the grant of the defendant’s motion for relief from an unlawful sentence. The Commonwealth’s appeal has not entered in this court. In its brief, the Commonwealth does not argue the propriety of the on desdemona othello grant of the maus plan motion. Therefore, we do not address it. 4. She opined also that the defendant’s jeep had struck a vehicle parked on the side of the road prior to the collision with the victim’s vehicle. 5. Essay From? In its entirety, the prosecutor’s explanation was: “Judge, she appears slow to me at effects of alcohol side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at me, staring me down while we were at the side-bar; and it bothered me.

But I do find that she’s slow at side-bar speaking with her, in her speech; and I’m concerned that this is a three or four day trial, a lot of witnesses; and I’m concerned about her ability to try the evidence.” 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the essay on desdemona discussion of the challenge, the judge asked the thesis enable style sheet prosecutor why he had used another peremptory challenge on juror fourteen. On the essay othello 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 paper narcissistic disorder, a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge. 7. Essay On Desdemona From? 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 “look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of a [discrete] group….” The reference (jumbled in transcription) most probably was the Maldonado decision. 8. The judge’s reference to the criminal history of essay, juror nineteen’s son was as follows: “I would also add that it was known to all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney’s office and apparently came up…. [A]nd I don’t remember the case per se but she spoke about it.

It apparently just happened last fall.” The judge went on to say that she understood the Commonwealth’s concern “whether she could perform in a truly objective manner” because her son had experienced the criminal justice process and subsequent incarceration. Essay Othello? The record does not show any expression of that specific concern by the prosecutor. 9. Business Plan? As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the essay on desdemona othello judge referred to the experience of maus, juror nineteen’s son in the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the othello juror’s son as justification for his peremptory challenge. Essay? A judge may not supply her own reasons to justify a prosecutor’s peremptory challenge. See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass.

237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of success. “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s `gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.” Commonwealth v. Maldonado, 439 Mass. at 465, 788 N.E.2d 968.

11. Essay Othello? This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon business plan, a ground of disqualification independently of any challenge of either the Commonwealth or a defendant. 12. The charge conference and on desdemona from othello instructions to the jury in the trial occurred in essay effects of alcohol May, 2006. The Supreme Judicial Court released the essay on desdemona from Colturi decision in April 2007; and this court the Hubert decision in May 2008.

Therefore the judge and trial counsel did not have the benefit of research disorder, those interpretations of the 2003 amendments. 13. Essay Othello? In Commonwealth v. Hubert, supra at maus 664, 885 N.E.2d 164, defense counsel made timely objections and essay from preserved the issue so that the on evil effects standard of on desdemona from, review was the presence of prejudicial error. Business Plan? Here we have reviewed the issue under the less demanding standard of substantial risk and found the error again sufficiently serious to require reversal. 14. As mentioned in essay on desdemona othello the introduction, supra, the maus defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the victim’s mother at the defendant as the jurors left the courtroom on the first day of essay on desdemona, trial, and (2) the presence of brainstorming, a makeshift memorial to the victim at the accident scene during the from othello jury’s view of the site. The claim of calculated impropriety by the prosecutor arises from testimony of two police officers that they told the thesis enable defendant that he had “killed” the victim. On Desdemona From? The defendant asserts that the prosecutor intended that the essay effects officers testify in this manner, in violation of the judge’s decision on a motion in limine.

No evidence supports the view that the mother’s outburst or the accident site memorial overcame the judge’s instructions for a verdict based strictly on the evidence. The claim related to the officers’ use of the word “killed” fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of on desdemona from othello, a denial of the right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by reason of the admission of the blood alcohol test result. The rule of Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal.

Massachusetts OUI Case – Defendnat admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED.

Andrew S. Robinson, Asst. Dist. Atty. On Evil Effects? (orally), Franklin County DA’s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Panel SAUFLEY, C.J., and essay from othello ALEXANDER, LEVY, SILVER, MEAD, and paragraphs and essays. edition 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. On Desdemona Othello? Gilman following his conviction at a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. 35(a). The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the research paper narcissistic disorder minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the othello statute as applied to brainstorming techniques, Gilman violated article I, section 9 of the on desdemona from othello Maine Constitution, which requires that “all penalties and punishments shall be proportioned to the offense.” Me. Const. Personality? art. Essay Othello? I, ? 9. ? 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 be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Washington, 541 U.S. Paragraphs 1st Canadian Edition? 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State’s appeal is accompanied by the written approval of the Attorney General as required by from othello, 15 M.R.S. ? 2115-A(2-B), (5) (2009) and essay M.R.App. P. 21(b). Because we agree with the State’s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in dispute.

On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. He had not been drinking. Gilman, a member of the essay on desdemona local Elks Club, was returning from the club’s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Thesis Enable Sheet? In fact, Gilman’s license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. Essay From Othello? A certified record from the business Secretary of State, admitted at trial over Gilman’s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for 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. ? 2557-A(2)(D)(2). Othello? Section 2557-A, which was enacted as part of what is popularly known as “Tina’s Law,” provides that in that circumstance “the minimum fine . . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by college essay techniques, the court.” 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. 606, ? A-11 (effective Aug. Essay On Desdemona From? 23, 2006).

? 6 Gilman moved to dismiss the 1 amendment essay allegation of the on desdemona othello 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. Style Sheet? See 29-A M.R.S. From? ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the essay of alcohol influence when he was stopped, it was irrational to aggravate the on desdemona operating after revocation (OAR) charge with prior convictions for OUI. College? The Superior Court (Jabar, J.) denied the motion. ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to from othello, drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman’s motion for a judgment of acquittal, and of alcohol took the on desdemona from othello ultimate issue of whether the college brainstorming techniques State had met its burden of essay, proof under advisement. Gilman then filed a written. argument asking the court to revisit its earlier rejection of his equal protection argument, and get writing paragraphs and essays. 1st canadian asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. Essay On Desdemona Othello? The court heard argument and 1 amendment essay took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt.

The decision further explained the court’s reasoning on the Confrontation Clause issue and again denied Gilman’s equal protection claim. On his claim of unconstitutionally disproportionate punishment, the essay othello court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for get writing and essays. 1st canadian edition, his argument that convicting him of essay on desdemona othello, a Class C offense constituted a due process violation because the State did not individually notify him that “Tina’s Law” increased the penalties if he were to be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on 1 amendment essay Gilman’s due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman’s sister, and Gilman himself.

At the conclusion of the hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Gilman, as well as the manner in 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 essay on desdemona from othello, 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 and essays. edition December 11, the on desdemona othello court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. Brainstorming Techniques? 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. Othello? 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 business, Maine citizens. Section 9 sets limits on the State’s power to punish: “Sanguinary laws shall not be passed; all penalties and essay from othello punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” Me. Get Writing 1st Canadian? Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at least two years. 29-A M.R.S. ? 2557-A(2)(D).

Accordingly, the court’s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the essay from particular offender, not simply proportionate to the offense itself, and (2) because of Gilman’s individual circumstances, the essay on evil of alcohol mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilman’s burden is from othello, significant, as “one challenging the maus business constitutionality of a statute bears a heavy burden of on desdemona from, proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of “strong and convincing reasons.” Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in essay rare cases that a mandatory minimum sentence is cruel and unusual because of the essay characteristics of the individual or because of the thesis enable style manner in which the othello sentence is carried out, there was not enough information in this case for the trial court to plan, 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 essay from othello, convicted, (2) the essay on evil of alcohol two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to essay othello, the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that “punishments shall be proportioned to the offense.” Me. Const. art. I, ? 9 (emphasis added). It says nothing about the individual offender.

This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to essay, the language used. Because the same principles employed in the construction of statutory language hold true in the construction of on desdemona, a constitutional provision, we apply the essay plain language of the constitutional provision if the essay on desdemona from othello language is unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning.

See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that “it is a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings” (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and get writing paragraphs and essays. 1st canadian edition unusual under section 9, we have rejected the challenge after considering the defendant’s conduct.7 Only in Worthley did we refer to the characteristics of the essay from othello individual offender, and then only to point out that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at brainstorming techniques 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in its recent Eighth Amendment jurisprudence the from Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not.

required an individualized determination that a mandatory punishment is get writing paragraphs 1st canadian edition, appropriate except in death penalty cases. See Harmelin v. Essay On Desdemona From Othello? Michigan, 501 U.S. Paragraphs Edition? 957, 996, 111 S.Ct. On Desdemona From? 2680, 115 L.Ed.2d 836 (1991) (“We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.”). Regarding the Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to 1 amendment essay, individualized sentencing.

Legislatures are free to provide for mandatory sentences for particular offenses.. . . The mere fact that a sentence is mandatory and severe does not make it cruel and on desdemona othello unusual within the 1 amendment 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 power to enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is on desdemona from othello, appropriate to do so, subject only to the constitutional prohibition against punishment disproportionate to a given offense.

The construction urged by Gilman would go far beyond what the language of section 9 requires and thesis style effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature’s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant’s individual circumstances in finding that a mandatory sentence is disproportionate as applied to that person is simply reinstatement by judicial declaration of a sentencing court’s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is on desdemona from othello, lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). Maus? A court would then always have the sentencing discretion that the essay on desdemona from othello 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 business, disproportionate as applied in a particular case. Essay? We do not read article I, section 9 to render the Legislature’s authority to enact mandatory sentences a nullity.10.

? 21 Because we hold that the clause, “all penalties and punishments shall be proportioned to the offense,” means what its plain language says, and does not require consideration of the individual circumstances of essay, each offender, the sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court “always has the on desdemona from othello power and duty to uphold the State and 1 amendment Federal Constitutions,” and will “protect the individual from an unconstitutional invasion of his rights by the legislative . . . branch of government.” Dep’t of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as “the voice of the sovereign people” in on desdemona from othello the area of essay of alcohol, crime and punishment: The fixing of an adequate criminal penalty is on desdemona, properly and legitimately a matter of legislative concern. It is not the office of the judiciary to effects of alcohol, interpose constitutional limitations where none need be found. Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and essay on desdemona from the evil to be avoided might then be a cruelty of constitutional dimensions. It seems to us that the interest of the legislature is paramount in the field of penology and 1 amendment the public safety. The legislature defines the contours of the crime itself, and sets the limits for punishment. Essay Othello? . . . The underlying structure of the penal system is statutory; the coherence of the system is to be found in legislative direction. State v. King, 330 A.2d 124, 127-28 (Me.

1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (“The power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the paragraphs 1st canadian court, which is to define a crime and ordain its punishment.” (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and unusual as whether it “is greatly disproportionate. . . and whether it offends prevailing notions of decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it “shocks the from othello conscience of the maus public, or our own respective or collective sense of from, fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is “inhuman or barbarous,” State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the techniques Legislature is “the voice of the sovereign people,” King, 330 A.2d at 127, and thus expresses the people’s will, only the most extreme punishment decided upon by that body as appropriate for essay from othello, an offense could so offend or shock the collective conscience of the people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the judgment of the Legislature is the collective judgment of the people. ? 24 Gilman was convicted of college, a Class C crime, punishable by a maximum of five years imprisonment. Essay On Desdemona? See 17-A M.R.S. ? 1252(2)(C) (2009). Plan? The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum.

29-A M.R.S. ? 2557-A(2XD). From? It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by essay effects, operating a motor vehicle while impaired, from continuing to drive under any circumstances. A mandated sentence for essay on desdemona, that conduct on the lower end of the zero-to-five-years scale is maus business, not the rare, extreme, or shocking case, and does not violate the essay on desdemona from proportionality requirement of article I, section 9. C. Equal Protection.

? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the Legislature had no rational basis for increasing his sentence for techniques, 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 essay from othello rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was “certainly strong enough” to justify the imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to get writing and essays., drive. Id.

Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to an enhanced sentence for on desdemona othello, operating after revocation remains intact. ? 27 Gilman next contends, on the authority of maus business, 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’s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. 683 A.2d at 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 on desdemona othello law is. See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Contrary to Gilman’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 essay effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of essay from, any vehicle before his license was restored. See 17-A M.R.S. Get Writing Paragraphs Edition? ? 1252(2)(C); 29-A M.R.S. On Desdemona From Othello? ? 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 State stating that his privilege to operate had been revoked, that he had received proper notice of the maus business plan revocation, and from othello 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 get writing 1st canadian Confrontation Clause because “the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only on desdemona from othello, routine, nontestimonial information.” 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. 1 Amendment? Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). ? 30 Gilman contends that Tayman must be overruled on on desdemona from othello the authority of the paper narcissistic personality disorder Supreme Court’s decision in from Melendez-Diaz v. Massachusetts, ___ U.S. And Essays. Edition? ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the on desdemona from admission of a chemist’s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although “documents kept in the regular course of custom sheet, business may ordinarily be admitted at trial despite their hearsay status. Essay On Desdemona From Othello? . Essay Effects Of Alcohol? . Essay On Desdemona? that is not the case if the custom style sheet regularly conducted business activity is the production of evidence for use at trial.” Id. at 2538, 174 L.Ed.2d at 328 (citation omitted).

? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman’s argument fails. Judgment of conviction affirmed. Essay? Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided:

D. Essay Effects Of Alcohol? A person is guilty of essay on desdemona othello, a Class C crime if the person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. The minimum fine for a Class C crime under this paragraph is $1,000 and the minimum term of 1 amendment, imprisonment is on desdemona othello, 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 essay any way that affects this case. P.L.

2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions. On Desdemona From? In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases).

3 The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch. Business? 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)). 4 The Rule provides: “On motion of the . . . attorney for the state . . . made within one year after a sentence is othello, imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner.” M.R.Crim. P. Maus Business? 35(a).

5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for other crimes. On Desdemona From? We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the narcissistic personality disorder Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and on desdemona from othello this Court have understood them to paper personality disorder, be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (“The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . The Eighth Amendment’s protection . . From? . College Techniques? flows from the essay from basic precept of justice that punishment for get writing 1st canadian edition, a crime should be graduated and proportioned to the offense.” (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (“In analyzing whether a sentence is essay on desdemona, cruel and unusual as applied, we look to whether the 1st canadian edition sentence is greatly disproportionate to the offense and whether it offends prevailing notions of decency.”); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (“A mandatory sentence is not cruel and unusual punishment unless the othello sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency”); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (“The interpretation of get writing, `cruel or unusual punishment’ also is informed by the requirement of proportionality.”). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. On Desdemona From Othello? Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for college essay, OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. On Desdemona From Othello? 1978) (holding mandatory four-year sentence for get writing paragraphs 1st canadian edition, robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me.

1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. Essay? 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of essay, lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me. 1969) (holding five-day sentence imposed by court in essay its discretion for contemptuous “reprehensible conduct” not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of a child violates Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct.

1183, 161 L.Ed.2d 1 (2005) (holding death penalty for juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for stealing three golf clubs under “three strikes” law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Personality? Michigan, 501 U.S. On Desdemona Othello? 957, 961, 995-96, 111 S.Ct. Get Writing And Essays. Edition? 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and on desdemona finally determines whether any of the maximum sentence should be suspended in essay arriving at a final sentence.

17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Governor the equitable power to “grant reprieves, commutations and from pardons” in on evil effects 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 essay on desdemona from othello hypothetical example of effects, “a legislature making overtime parking a felony punishable by life imprisonment.” Ewing, 538 U.S. at from 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. 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’s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant.

Criminal No. 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender’s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Weinreb, United States Attorney’s Office, John A. Wortmann, Jr., United States Attorney’s Office, Boston, MA, for United States of America. GERTNER, District Judge: TABLE OF CONTENTS.

A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Style? Gen. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Essay On Desdemona? Whether the 1998 Juvenile Offenses Were Committed on Different. 2. Whether the Inquiry Is Limited, to enable, Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of defendant Eddie Gautier (“Gautier”) one night in Roxbury.

The offense stemmed from a night of drunken carousing; the essay from gun was completely inoperable.1 Though he was originally arrested by state officers, possession of an inoperable gun did not constitute a crime under state law. The federal government took up the case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for paragraphs and essays. 1st canadian edition, Gautier. On Desdemona Othello? It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the maus business Armed Career Criminal Act (“ACCA”). See § 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions). I disagree. In passing the ACCA, “Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of livelihood, and essay who, because they possess weapons, present at least a potential threat of harm to persons.” Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. Get Writing And Essays. Edition? 2143, 109 L.Ed.2d 607 (1990). Gautier’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 essay othello, 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 “violent felony” within the meaning of the ACCA. Thesis Enable Custom Style Sheet? Second, and in the alternative, court records were ambiguous on essay on desdemona from othello the question of whether his 1998 offenses were “committed on occasions different from one another” as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months’ incarceration, in 1st canadian edition effect the Guideline felon in possession sentence, and three years’ supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for essay othello, that sentence. On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group.

One of 1 amendment, Gautier’s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband. The officers exited the car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted “get the burner” (slang for gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. They arrested and essay on desdemona othello searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier’s jacket pocket. An examination later revealed that the techniques gun was completely inoperable.3. Gautier was transferred to federal custody on essay on desdemona February 8, 2006, and essay on evil indicted on February 15, 2006, on one count of felon in possession of a firearm and one count of essay othello, felon in possession of ammunition, both pursuant to 18 U.S.C. § 922(g)(1). Subsequent to his arrest, he agreed to speak to essay of alcohol, federal agents and police investigators, admitted to essay on desdemona othello, possessing the gun, and divulged where it had come from.

Indeed, according to his counsel, the defendant repeatedly offered to paper disorder, plead guilty to the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of essay from othello, 15 years. Counsel for Gautier sought a pre-plea Pre Sentence Report (“PSR”). When the pre-plea PSR concluded that an ACCA enhancement was required, the defendant felt obliged to go to trial. At trial, he fully admitted that he possessed a firearm and and essays. that he had a prior felony conviction. From? His defense was that he had picked up the gun and held it momentarily, to keep it from a group of 1st canadian, younger, intoxicated friends in a dangerous area of Boston.

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

Gautier’s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. That statute provides: In the case of essay from, a person who violates section 922(g) of this title and has three previous convictions by essay techniques, any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years…. 18 U.S.C. Othello? § 924(e)(1). Gautier’s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the get writing paragraphs and essays. sentencing enhancement: First, Gautier’s conviction for resisting arrest may not be a “violent felony” under the ACCA.

Second, the government may have difficulty establishing, on on desdemona the basis of source material deemed appropriate by thesis enable style sheet, the Supreme Court, that the 1998 offenses were “committed on occasions different from one another.” A. Essay On Desdemona From? Whether Gautier’s 2001 Crime of get writing paragraphs 1st canadian, Resisting Arrest under Mass. Gen. Laws Ch. On Desdemona? 268, § 32B Is a Violent Felony. The ACCA defines “violent felony” as any crime punishable for a term exceeding one year that “(i) has as an 1 amendment essay, element the use, attempted use, or threatened use of essay on desdemona othello, physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of essay of alcohol, explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Courts are obliged to apply a categorical approach to essay from, 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 essay 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. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against essay on desdemona othello engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the college essay techniques predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and othello nonviolent felonies, which do not. In such a case, while the sentencing judge “may not hold a minitrial on the particular facts underlying the prior offense,” see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Maus Business? Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may “peek beneath the coverlet” of the formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is essay othello, how far that “peek” can go. “Not very far, is the essay effects of alcohol answer.” United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at essay on desdemona othello 600-02, 110 S.Ct.

2143; Damon, 127 F.3d at 142-46.) If the get writing paragraphs 1st canadian defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the verdict. When a defendant’s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the on desdemona from othello plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at 1 amendment sentencing, and any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the relevant facts contained in on desdemona othello the PSR are uncontested, the court may consider these as further admissions by get writing and essays. 1st canadian edition, the defendant. See Dueno, 171 F.3d at 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and othello nonviolent offenses and, further, that nothing in the record of Gautier’s 2002 plea to the charge establishes that the college plea was to on desdemona othello, 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 disorder, arrest by “(1) using or threatening to essay from, use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” Mass. On Evil Effects? Gen. Laws ch. Essay On Desdemona? 268, § 32B(a).

The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see Gov’t Sent. Mem. 3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier’s colloquy, no plea agreement, and no other record indicating which type of resisting arrest Gautier admitted.

While the PSR reviewed the police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to any “peek” at the underlying facts not comprised by essay techniques, the plea colloquy. From? Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the offense and provides its full statutory definition.5 As there is business plan, no evidence that Gautier specifically pleaded guilty to essay on desdemona from, the Prong (1) version of college brainstorming techniques, resisting arrest and as the. statute is structured in the disjunctive, the on desdemona othello government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. 1. Get Writing And Essays. 1st Canadian Edition? 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 on desdemona othello the ACCA. That is, the language “using any other means which creates a substantial risk of business, causing bodily injury to such police officer or another,” Mass Gen. From? Laws. ch. 268, § 32B(a), does not explicitly “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i).

Moreover, the 1 amendment fact that the Prong (1) definition of resisting arrest does contain such an essay from, element, coupled with Prong (2)’s specification of resistance by “other means,” suggests that Prong (2) does not involve such an research paper, element by implication, either. 2. Whether the Crime Defined by on desdemona from, Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii) If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the second definition provided by effects of alcohol, the ACCA. Since resisting arrest is obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the use of explosives—the inquiry focuses on what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is whether resisting arrest “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” in the language of the Massachusetts statute, Mass.

Gen. Laws. Othello? ch. 268, § 32B, “involves conduct that presents a serious potential risk of physical injury to another,” in research personality the language of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the residual clause. In Begay v. Essay From? United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the paragraphs 1st canadian 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 on desdemona, a “violent felony” under the residual provision of maus plan, § 924(e)(2)(B)(ii). Essay From? Where the offense in question is maus plan, not one of those enumerated in the statute, a court must determine not only on desdemona from, (1) whether that offense “involves conduct that presents a serious risk of physical injury to another,” but also (2) whether the crime is “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses.

Id. at 1585. Essay Of Alcohol? The latter step is critical here. On Desdemona? It requires a court to decide whether the offense in question typically involves “purposeful, violent, and aggressive behavior”—the defining feature of the enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to text, the court noted that the presence of the enumerated offenses of burglary, arson, extortion and crimes involving explosives “indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of 1 amendment essay, physical injury to another.’” Id. Had Congress intended the statute to essay on desdemona from, cover all crimes creating serious risk of injury, it would have omitted the examples.

As to history, the Court noted that in 1986 “Congress rejected a broad proposal that would have covered every [such] offense.” Id. at 1586. Finally, the Court noted that this interpretation served the ACCA’s purpose of “punish[ing] only thesis enable style sheet, a particular subset of offender, namely career criminals.” Id. at 1588: The listed crimes all typically involve purposeful, “violent,” and “aggressive” conduct…. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to on desdemona from, harm a victim…. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels “armed career criminals.”

Id. at 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to another.” Id. at 1584. Even so, it held under the maus plan second step of the analysis that a conviction for from, driving under the influence (“DUI”) falls outside the scope of the residual clause because “[i]t is simply too unlike the provision’s listed examples for us to believe that Congress intended the provision to cover it.” Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze “every conceivable factual offense covered by a statute,” but rather should consider “the ordinary case” of the offense. James, 127 S.Ct. at 1597.

In the words of the First Circuit, I must evaluate the degree of risk posed by “the mine-run of conduct that falls within the heartland of the thesis custom style statute.” United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in on desdemona othello possession of thesis enable custom, a firearm is not a violent felony under the ACCA because risk of physical harm does not “often accompany[] the conduct that normally constitutes” the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court’s understanding that it had to consider “what’s the typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is essay on desdemona from othello, a crime of violence “if and only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant’ of the predicate offense”); Winter, 22 F.3d at 20 (“A categorical approach is maus business, 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 essay on desdemona from, concerned with the usual type of conduct that the statute purports to proscribe.”). To determine the mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute. In Commonwealth v. Grandison, 433 Mass. College Brainstorming Techniques? 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant’s stiffening his arms and pulling one away for a second to avoid being handcuffed constituted resisting arrest by a “means which creates a substantial risk of causing bodily injury” to essay othello, the officers involved. Id. at thesis custom 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. Essay? Grant, 71 Mass. Enable Sheet? App.Ct. 205, 210 n. Essay? 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 “active, physical refusal to submit to the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to resist handcuffing.

Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the Prong (2) definition of resisting arrest “presents a serious potential risk of physical injury to another.” Stiffening one’s arms to prevent handcuffing, the 1 amendment usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the test. See United States v. Othello? Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on get writing edition these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a “violent felony” for othello, ACCA purposes) (“While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the essay brainstorming techniques statute also charges behavior which would arguably not cause serious personal injury.”). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is “[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.” 433 Mass. at 145, 741 N.E.2d 25.

Even assuming arguendo that the essay on desdemona conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses. And Essays. 1st Canadian? Begay, 128 S.Ct. at 1585. First, looking to on desdemona, the degree of thesis custom style, risk: Even if the essay othello Grandison court is correct that stiffening one’s arms and pulling away present a serious risk of college essay techniques, harm to another, the degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. On Desdemona? The Supreme Court has explained that burglary presents a high risk of violence due to get writing, “the possibility of essay on desdemona, a face-to-face confrontation between the paper narcissistic personality disorder burglar and a third party … who comes to investigate.” James, 127 S.Ct. at on desdemona othello 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the “powder keg” rationale). The element of surprise that spooks a burglar into personal violence is not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of one’s arms than that it will result from a burglary, the setting of a structure on of alcohol fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. Second, looking to the “in kind” test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves “purposeful, violent, and aggressive behavior.” In Begay, the Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the enumerated offenses. 128 S.Ct. at 1586-87 (“[S]tatutes that forbid driving under the influence … criminaliz[e] conduct in respect to on desdemona, which the maus business plan offender need not have had any criminal intent at all.”); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of violence because it is not intentional).

But as the First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall “neither within the safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI …), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.” Id. at 7 (citation omitted). Prong (2) resistance is such a crime. The First Circuit recently explained that “all three types of conduct—i.e., purposeful, violent and from othello aggressive—are necessary for a predicate crime to qualify as a `violent felony’ under ACCA.” United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics. It explained: The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at paragraphs and essays. edition 1587-88. Perhaps because it is common sense that a DUI is on desdemona from othello, not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “tending toward or exhibiting aggression,” which in turn is defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. Thesis Style? 2003). Violence may be defined as “marked by extreme force or sudden intense activity.”

Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a “crime of violence” under the career offender sentencing guidelines.10 Id. at 59. While the essay on desdemona from offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to be similar “in kind” to the enumerated offenses. Id. A similar conclusion obtains here. To be sure, the Prong (2) form of business, 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 on desdemona, expose others to maus, risk of injury). It is essay on desdemona othello, differently purposeful, however, from the interstate transport of a minor for prostitution, which the First Circuit held in Williams constituted a “crime of violence” under the career offender provision of the sentencing guidelines. 529 F.3d at 7-8. A defendant who prostitutes minors “is aware of the risks that the prostituted minor will face” and the risk of harm is custom style sheet, “easily foreseen by the defendant,” id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to essay on desdemona, those around him. Essay Of Alcohol? Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses.

See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary “one of the `most damaging crimes to society’ because it involves ‘invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and essay othello valued possessions’” (quoting H.R.Rep. No. And Essays. 1st Canadian Edition? 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and essay on desdemona from it lacks the extreme force and sudden intenseness required by the court’s definition of violence. See Herrick, 545 F.3d at 60.

Nor does it resemble those offenses previously held by the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the residual clause. See United States v. 1 Amendment Essay? Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on 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 othello a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and thesis enable sheet entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. United States, 2004 WL 1571643 (D.Me. On Desdemona? Apr. 30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old). And those cases predated Begay, when the standard for finding an offense to be a “violent felony” was easier to satisfy. In light of the 1 amendment difference in aggression and violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the from enumerated offenses in the “`way or manner’ in which it produces” risk of injury. Begay, 128 S.Ct. at 1586. To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of custom style sheet, these cases predate Begay.11 Begay. “charted a new course in essay on desdemona interpreting the critical violent felony definition of the Armed Career Criminal Act.” Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government’s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a “crime of violence” under the plan career offender guidelines. United States v. Kristopher Gray, No.

07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. On Desdemona? 24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)). Thesis Enable Custom Sheet? In another post-Begay case on essay on desdemona from othello resisting arrest, the essay techniques U.S. From Othello? District Court for the District of Kansas held that the paragraphs and essays. crime of fleeing and essay on desdemona eluding an officer is not a crime of violence because “the statute also charges behavior which would arguably not cause serious personal injury” and because resisting arrest “is not similar to the listed crimes set forth” in § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the existence of a 2005 precedent concluding that the resisting arrest was a crime of violence. The court explained its about-face as required by Begay. Id. at *2.

In light of the Supreme Court’s pronouncement in Begay, then, I find that the Prong (2) version of research, resisting arrest is not a “violent felony” under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of one’s arms, not the application of force to on desdemona from othello, another. Plan? Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest. Because the on desdemona from othello government cannot establish that he pleaded to Prong (1) rather than to and essays. 1st canadian, Prong (2)—as it must— it cannot look to on desdemona from othello, this conviction for a qualifying violent felony. Gautier has at most two statutory predicates—too few to trigger the fifteen-year mandatory minimum.

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

CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. Essay On Desdemona From Othello? 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. And Essays. 1st Canadian Edition? 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the essay othello same victim and college essay techniques defendant was convicted and sentenced for essay on desdemona, both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on custom style sheet different occasions for the purposes of the ACCA, even though defendant received concurrent sentences).

2. Whether the Inquiry Is Limited to Shepard-approved Source Material. Again, in order to apply the above legal standard to the facts of Gautier’s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a “categorical approach” to determining whether a prior conviction qualifies as a “violent felony” and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Essay On Desdemona From Othello? In the case of a guilty plea, the Court has limited district courts to “the terms of the get writing 1st canadian edition 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.” Shepard, 544 U.S. at 26, 125 S.Ct. On Desdemona From? 1254. The issue I confront here is whether this same source restriction applies to my consideration of get writing paragraphs and essays. edition, whether two offenses were “committed on occasions different from one another.” 18 U.S.C. Othello? § 924(e)(1). The First Circuit has never ruled on this issue.

In a pre-Shepard case, the court “express[ed] no opinion” on the lower court’s citation of Taylor for the proposition “that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.” Stearns, 387 F.3d at 107. On Evil? In that case, the defendant sought an evidentiary hearing to on desdemona othello, 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’s ruling without objection, the narcissistic personality disorder First Circuit held he could not raise the issue on appeal. Essay Othello? In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the First Circuit again declined to 1 amendment, resolve the issue. The defendant argued it was error for the district court to essay on desdemona othello, use facts gleaned from maus business police reports and described in the PSR to find that two drug offenses disposed of on the same day were in on desdemona from othello fact “committed on occasions different from one another.” Id. at 38. The court of appeals opted not to address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA. Id. at and essays. 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in essay othello United States v. Business Plan? Thompson, 421 F.3d 278 (4th Cir.2005), that the “ACCA’s use of the term `occasion’ requires recourse only to data normally found in conclusive judicial records, such as the date and location of an offense, upon which Taylor and essay on desdemona othello Shepard say we may rely.” Id. at paragraphs 286 (upholding trial judge’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 from where defendant never objected to the details in techniques the PSR); see also United States v. Williams, 223 Fed.Appx. 280, 283 (4th Cir.

2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the court could not establish on the basis of Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. Bookman, 197 Fed. Essay Othello? Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the sequence of his predicate offenses was not established by college essay brainstorming, 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’s prior crimes were committed on on desdemona othello 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. Research Paper Personality Disorder? 2005). Essay? Several district courts have come to the same conclusion. See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C.

Oct. 16, 2008) (limiting the occasions inquiry to facts available in Shepard-approved material), including at college brainstorming least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and on desdemona othello holding that the 1st canadian edition trial court “properly reviewed the charging documents to determine that the offenses occurred on three separate occasions”). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: “All of our opinions on essay this issue have involved consideration of the paragraphs and essays. specific facts underlying the prior convictions.

Indeed, we cannot imagine how such a determination could be made without reference to essay othello, the underlying facts of the college essay techniques predicate offenses.” United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. On Desdemona Othello? 2000). Get Writing Paragraphs And Essays. Edition? The Seventh Circuit has likewise allowed sentencing judges to venture beyond the essay on desdemona decisional documents envisioned by Taylor, reasoning that these only research paper narcissistic, rarely provide the on desdemona from othello details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. Style? 3 (7th Cir.1994) (holding “[a]s a practical matter” that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the essay from othello question is 1 amendment essay, “unsuited to a categorical approach,” United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the 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’s use of the PSR to determine that defendant had three predicates from essay on desdemona different occasions for the ACCA). I find that the former approach is more faithful to the Supreme Court’s rulings in Taylor and Shepard and makes sense in terms of the application of the business plan very severe ACCA.

As I explained in my remand opinion in Shepard, the essay Supreme Court’s categorical approach “caution[s] the judge against becoming embroiled in a `daunting’ factual inquiry about what had actually happened at the time of the state offense.” United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the custom sheet defendant did not go to trial is “what did the defendant plead to in the state court?” Id. at 17. Where a defendant has not been found guilty by a jury, it is only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to from othello, them at sentencing.14. In light of the Supreme Court’s caution in this area and paper narcissistic personality the judgment of the courts of appeals, I find that I am limited to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” in othello determining whether the defendants prior offenses were committed “on occasions different from one another.” Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Gautier’s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. Paragraphs 1st Canadian Edition? The government can produce no plea colloquy transcripts from those cases.

And no additional underlying facts were incorporated into the PSR and adopted by the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and specifically stating that police reports were not received). While the plea tenders merely contain the defendant’s and prosecutor’s dispositional requests, several things are evident from the face of the indictments. From Othello? In Suffolk Superior Court case no. 1 Amendment? 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and essay othello battery against a victim named “F.L.” In Suffolk Superior Court case no. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on January 8, 1998. The indictments indicate that on essay on evil effects January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.’s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against different individuals. But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims.

Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the time interval between the offenses, or the continuity of the conduct. It is therefore not “possible to discern the point at which the first offense is completed and the second offense begins.” United States v. On Desdemona From? Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the style indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against on desdemona F.L. and those against 1 amendment essay E.M. were grouped and charged in separate indictments suggests that Gautier committed them on on desdemona from different occasions. Essay On Evil? It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. On Desdemona From Othello? Appx. 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990).

As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions. Paragraphs And Essays. Edition? See, e.g., United States v. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed “on or before November 30? did not establish that the offenses occurred on “occasions different from one another” for the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. Essay On Desdemona Othello? 6 (D.Me. 2005) (holding that Shepard’s source restriction governs determinations of whether prior crimes were “related” under the Sentencing Guidelines criminal history provisions, then ruling that the existence of paragraphs 1st canadian edition, separate indictments did not mean they were unrelated). Essay Othello? This conclusion applies with the same force to essay, the instant case.

Prosecutors have wide discretion as to the form of from, criminal charging. Research Personality Disorder? Under Massachusetts Rule of Criminal Procedure 9(a)(2), the othello Commonwealth “may” charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautier’s 1998 offenses in maus separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced “a period … devoid of criminal activity and in on desdemona from othello which he may contemplate whether or not to commit the second crime,” Stearns, 387 F.3d at essay on evil effects of alcohol 108, I cannot fairly conclude that he committed the armed robberies “on occasions different from one another.” By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to Gautier.15. IV.

THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the essay on desdemona Guidelines to this extent: the base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). Enable Custom? While Gautier argues that he should get a two-point reduction for acceptance of essay on desdemona from othello, responsibility under § # E1.1(a) and (b), I disagree at enable sheet least as Guidelines interpretation is concerned. I consider this issue in essay from othello 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. 1 Amendment Essay? I also agree that Gautier’s criminal history is category IV under § 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months. B. 18 U.S.C. § 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to be imminent harm to others, and because he has turned his life around while in custody.

I can find no clear rationale for a variance on these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to essay, achieve the purposes of 3553(a) for the following reasons: 1. Thesis Enable Custom? Nature and on desdemona from Circumstances of the 1 amendment Offense. Gautier claims he took the gun from his friends because they were drunk and behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the on desdemona from jury found.

Given his record, he should not have put himself in business plan a position where the othello offense was even possible: in the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety. Gautier cooperated with the authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to college, 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 essay othello 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’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 get writing and essays., Massachusetts. Essay From? 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 age 17, but was in and out of enable, 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 essay, his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of maus business plan, 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 on desdemona future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to paper personality, 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 on desdemona, his incarceration and as a template for get writing and essays. edition, his supervised release afterwards. Studies suggest the significance on recidivism of a consistent plan, beginning in prison and extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). In addition to that plan, as a condition of supervised release, Gautier is to speak at high schools or to other young men identified by Probation as “at risk.” I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the low end of the essay Guidelines range that he would have faced, 57-71 months, had he been charged with felon in essay on evil possession, without the essay ACCA enhancement, and maus pled to that offense as he had wanted to do.17 That sentence combines the Guidelines’ values with those of § 3553(a).

1. The ballistics report observed that “a portion of the trigger guard is broken off, the ejector rod collar is out of place, the essay from ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the cylinder hand is not making contact with the cylinder, and neither the trigger nor the 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 its present condition and in my opinion it would require extensive work and new parts to essay on evil effects of alcohol, return this weapon to a state in which it can be discharged.” Boston Police Ballistic Unit Case Notes, Def.’s Sent. Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in on desdemona from othello 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. Gautier made incriminating statements during the thesis custom booking procedure, including “You got me with the burner, I’m gonna take a plea and on desdemona othello do a year” and “That’s a separate charge? Of course it’s gonna have bullets in it, it’s a gun.” He waived his Miranda rights and maus business made similar statements during a police interview. 4. From Othello? In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were “burglaries” under the ACCA.

The First Circuit reversed, holding that police reports could be considered if they “constituted sufficiently reliable evidence of the government and the defendant’s shared belief that the research paper narcissistic disorder defendant was pleading guilty” to a generically violent crime. United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the essay from defendant plead to in state court, and that the and essays. 1st canadian edition police reports did not provide reliable evidence on that central question. United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the police reports could be considered and instructing me to apply to ACCA mandatory minimum.

United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to on desdemona, police reports or complaint applications not made a part of the plea or colloquy or adopted by defendant, in paragraphs 1st canadian determining whether a defendant had pleaded to a violent felony. Othello? Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word “some” for the word “any” in paragraphs “any other means.” This discrepancy is of no consequence in on desdemona this case. 6. The court noted that the conduct could also constitute resisting arrest under Prong (1) of the statutory definition.

Id. at 719. 7. The government describes these as “marginal or unusual examples of the crime,” Gov’t Sent. Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at 1 amendment the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in essay on desdemona from a case presenting the enable question of essay from othello, whether failure to report to 1 amendment essay, prison is a violent felony under the on desdemona from othello ACCA. Chambers v. United States, No. 06-11206, 2008 WL 4892841 (U.S. Research Paper Narcissistic Personality Disorder? Nov. 10, 2008). This case presents the Court with an essay othello, opportunity to reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the defendant into 1 amendment essay custody.

The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that “it is an embarrassment to the law when judges make decisions about consequences based on essay on desdemona conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences.” United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against an arresting officer. In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an maus, ACCA predicate offense. 10. The First Circuit has repeatedly held that “[g]iven the similarity between the ACCA’s definition of `violent felony’ and the definition of `crime of violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is generally persuasive when interpreting the othello other.” Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. Essay Effects Of Alcohol? 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. Essay? Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for resisting arrest was a prerequisite “crime of violence” under the career offender guideline, U.S.S.G. § 4B1.1. He confessed “hesitation” based on “the uncertain impact of the Supreme Court’s recent decision in Shepard” and the fact that the resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.’” Id. at 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendant’s motion to exclude his resisting arrest conviction as a predicate offense for career offender status.

In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on appeal at the First Circuit. See Almenas v. United States, No. 06-2513. College Essay? Because the parties in on desdemona that case have urged the court to remand the case on alternative grounds—namely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. Enable Custom Sheet? 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 essay on desdemona from othello Maryland was a violent felony under the residual clause of maus, § 924(e)(1)(B)(ii) because “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physically injury to the officer and others.” Id. at 455. Because the court made no attempt to from, identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at research paper narcissistic personality disorder issue here. Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of violence” under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the from othello possibility of a violent incident. See id. at 1055. 12.

The government urged me to consider this alternative holding, even though it had not fully briefed it, in order to avoid addressing this issue on enable sheet a remand, in the event of essay othello, resentencing. 13. This view accords with the guidance provided to essay brainstorming, trial judges in essay other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because “it is possible to discern the point at which the first offense is college essay, completed and the second offense begins”); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on essay on desdemona same night in separate doctor’s offices 200 yards apart occurred on different occasions, because defendant “made a conscious decision” to business, commit another crime after completing the first). 14. The Shepard Court came to from, this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would … make a disputed finding of fact about paragraphs and essays. edition 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. Essay On Desdemona From Othello? 227, 119 S.Ct.

1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and research paper narcissistic they guarantee a jury’s finding of on desdemona othello, any disputed fact essential to 1 amendment essay, increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. Essay On Desdemona? United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, “the disputed fact here … is too far removed from the conclusive significance of narcissistic, a prior judicial record, and othello too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to enable style sheet, resolve the on desdemona from othello dispute.” Id.

15. In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the 1 amendment essay ACCA, one of his January 8, 1998 criminal episodes does not qualify as a “violent felony.” The argument proceeds in several steps. On Desdemona From Othello? First, an offense is maus plan, not a “violent felony” unless it is “punishable by imprisonment for a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by essay on desdemona from, imprisonment for a term exceeding one year if it has been “set aside” under state law, § 921(a)(20). In Massachusetts, a youthful offender’s conviction is “set aside” when he is discharged from Department of essay, Youth Services (“DYS”) custody. See Mass. Gen. Othello? 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 techniques then discharged at essay from othello age 21. Based on the foregoing reasoning, he argues, the 1 amendment offense cannot stand as a violent felony under the essay from ACCA.

The ACCA, however, is not absolute in get writing paragraphs edition refusing to essay on desdemona from, count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of civil rights expressly provides that the maus plan person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Where a defendant’s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this “unless clause” is read to from, include restrictions applied by state statutory law. Thesis Custom Style? See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. On Desdemona From Othello? Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier’s discharge from DYS was accomplished by statute, Mass. Gen. Enable Custom? Laws. On Desdemona From? ch. 120 § 16, so the 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.

140 § 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a “conditional plea,” pleading guilty while preserving his legal arguments. For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and paragraphs and essays. admitted that he possessed the gun. He attempted to explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for the trying the case.

17. Base offense level 24, minus 3 for essay on desdemona, acceptance of responsibility, and criminal history category IV.

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circus essay Check out othello, my new books, including: Shipwrecks and Lost Treasures: Outer Banks. Looking for the music? You'll find different tunes accompanying selected articles on my site. Click on the notes. TIPS FOR WRITERS.

Freelance Writing Tips. All contents of this site. Bob Brooke Communications. STEP RIGHT UP! TO THE WORLD. OF CIRCUS POSTERS. Identifying and Dating Circus Posters.

Different Posters for Different Purposes. Circus Poster Reproductions. The Market for Circus Posters. L ADEEZ AND GENTLEMEN, CHILDREN OF ALL AGES! WELCOME TO THE GREATEST SHOW ON EARTH ., shouts the ringmaster of the 1 amendment, Ringling Brothers Barnum Bailey Circus as the performers and animals march into the tent in the grand parade.

America’s love affair with the circus, lasting over 200 years, has survived the essay from othello, minstrel show, the medicine show, and vaudeville. Weeks ahead of the show, an air of research paper narcissistic anticipation came to towns across America as advance men, wielding buckets of paste and long-handled brushes, pasted huge, bright circus posters over faded auction and political signs and on desdemona from, placed cards in store windows within a 50-mile radius of the circus site. Enable Style! Boys and girls stood before them and gawked, as they inhaled the pungent smell of fresh paste. What better way to relive the nostalgia of those bygone shows than to collect bright, and often artistic, circus posters. Essay On Desdemona! Circuses played on the fantasies of the common man. Posters advertised stupendous acts with words like electrifying , d’equitation , noble , liliputian , amazon , bravest, world famous, and exotic. They promised showgoers snarling lions from 1 amendment essay, darkest Africa and elephants from the exotic East, along with aerialists performing daring acts high in the air and lady equestrians in on desdemona othello, glittering tights. P.T.

Barnum, always the master showman, knew that the circus brought joy into the humdrum, and often sad lives of its patrons. Get Writing And Essays. 1st Canadian Edition! And circus posters reflected that in their bright, colorful illustrations and myriad of from othello type styles. Today, these same posters are highly collectible. Early Circus History. Circuses, as they’re known today, began as equestrian exhibitions, which later added tumbling, rope-dancing and juggling.

John Bill Rickets, a first-class trick rider from Britain, gave the first circus performance in 1793 at The Riding School in Philadelphia. After the War of 1812, circus owners replaced the college essay brainstorming techniques, permanent equestrian type shows with rolling shows that pitched their tents on village greens. On Desdemona From Othello! These became the direct descendants of the tented circuses of today. The first to on evil effects of alcohol put on a traveling show was Hackaliah Bailey, who, in 1815, purchased Old Bet, an African elephant, from a sea captain for $1,000. Bailey had such success in presenting Old Bet to the local townspeople and farmers, he arranged to purchase additional exotic animals from on desdemona from, other ship captains. America grew and research narcissistic disorder, changed as did the essay othello, circus.

In 1884, five brothers from Baraboo, Wisconsin--Al, Alf, Charles, John, and Otto Ringling–who not only had a flair for showmanship but were superb businessmen, started a circus. When they took over the Barnum and Bailey Circus in business plan, 1908, they could stake a legitimate claim to the title Greatest Show on Earth. Since 1919 the Ringling Bros. and essay on desdemona from othello, Barnum Bailey Circus, also known as The Big One, has traversed the country. The American circus has left a legacy of plan collectibles–sequin-bedecked acrobatic costumes, floppy clown hats, and paper items of all kinds. But it’s the latter, especially posters, that have become the hottest items sought by collectors. Referred to as bills, slang for handbills, they became an important element in the success of any circus early on. Advertising a circus was a challenge before radio, T.V. and the Internet. To be successful, a circus owner had to market his show–which often ran for essay othello, only a day–from scratch just about every week. To stay ahead of the on evil, competition from competing shows, an owner had to create a brand name (his circus’ title) that would be so recognizable as to othello generate repeat patrons for his circus.

In addition, he had to advertise the features of his show to set it apart from others. And, finally, he had to display the date of the show prominently so patrons could plan to attend. To create poster illustrations, early 19 th -century printers used mahogany wood blocks for wood engravings and pine blocks for cruder woodcuts. Because the mahogany blocks were expensive and disorder, the engravings hard to make, printers used them over and over again for different show posters. Many early posters, printed on bright white, medium- weight rag paper with oil-based inks, included the name of the show, with a date added later by the circus’ advance crew. The invention of the lithographic printing process in the 1798 by Aloys Senefelder, a German map inspector, drastically changed poster production. Using this process,, which depends on on desdemona othello, the mutual repulsion of essay water and on desdemona from othello, grease, printers applied a design using a greasy crayon or liquid onto thesis custom style a 28 x 42-inch block of essay on desdemona limestone. Then onto the wet stone they would roll oil-based ink, which would adhere to essay the greasy drawing or painting, and run it through a press to transfer the image onto dampened paper. Though sparingly used for almost 50 years after it appeared, it had become an indispensable tool for printers by the 1880s.

Printers enlisted the services of the essay on desdemona othello, finest artists to design circus posters. However, few signed their work. While some specialized in particular subjects, most worked in teams to and essays. create the posters in a more or less assembly line process. Essay! Therefore, posters became known by the companies that printed them and not by the artists who created them. Probably the greatest image ever produced as a circus poster design was that of a leaping tiger, designed by college essay brainstorming the noted illustrator Charles Livingston Bull in 1914, said Neil C. Cockerline, circus historian. This particular image may well be the most recognizable circus image in history, and it is still utilized today, often appearing in essay, set and essay, costume designs in current productions of the from, Ringling Bros. and Barnum Bailey Circus. Printers offered stock poster designs featuring acrobats, clowns, elephants and other wild animals to which they added the show title and date. Available through catalogs, these cost much less than specially designed editions. It was not uncommon for more than one circus to use the same poster designs in the same season, the thesis custom sheet, only difference being the essay on desdemona othello, show title on 1 amendment essay, the posters, added Cockerline. Essay On Desdemona! Printed stock posters might remain in storage for years until they were sold to essay a circus to be used. It is not uncommon to essay on desdemona from find posters used during a specific year which had actually been printed decades before.

Printers based a poster’s dimensions on the size of the printing bed. Paper! After the introduction of lithography, the size of a litho stone, called a sheet, became the standard. So printers identified posters in units of essay from othello sheets or half-sheets. Horizontal posters became known as flats and verticals, uprights. Larger posters came in multiple sheet sizes from 2 to 24. The combination of sheets determined the type of 1 amendment essay poster produced. Identifying and Dating Circus Posters. Circus posters can be identified by their creases since all needed to be folded for storage and shipment, and each show printer folded his posters in on desdemona othello, a slightly different way. But they can also be dated by looking for date sheets–smaller papers pasted onto posters indicating the day and get writing and essays. edition, date of the show and essay on desdemona from, only good for one day and town–as well as date tags, small strips pasted along the bottoms of pictorial one and half-sheet posters by advance billing crews. These can help a collector identify the year a circus used a poster since shows kept yearly records of their routes, which are now housed in museums such as the Hertzberg Circus Museum in San Antonio, Texas. According to Cockerline, when billposters and lithographers became unionized by the 1950s, any poster put up got a Billposter's Union Stamp, which is maus business plan, another way of dating a poster.

Different Posters for on desdemona from, Different Purposes. Circuses used a variety of posters to advertise their shows. Printers created half-sheet and college essay brainstorming techniques, full-sheet panels featuring horizontal or vertical illustrations especially to fill narrow spaces in store windows, to allow advertising without covering too much of the essay on desdemona, window display. Brainstorming Techniques! One-sheet panels measured 21x 54. Half-sheet panels, printed with either vertical or horizontal designs, measured 14x 42. Guttersnipe referred to circus paper several feet wide by only a few inches high that was intended to go on rain gutters over store fronts; and banners, for outdoor displays, were usually mounted on essay, thin stiff cloth. Small one-color-on-white date sheets, printed using the letterpress printing process, displayed the circus’ name, date and location of the show. Advance men plastered these all over maus business, a town several weeks before a circus was to arrive. On Desdemona From Othello! Thus, circuses were the first to use saturation advertising. Window cards or placards, consisting of an image printed on a facing sheet backed with cardboard, were another form of poster, usually in quarter-sheet dimensions or less often in odd-sized dimensions between a quarter- and half-sheet size.

In the mid-1970's, Ringling Brothers and Barnum Bailey adopted a policy of research narcissistic disorder using only a single poster design for each edition of their circus, often incorporating a variety of featured acts or attractions in the design. Essay! The poster designs also incorporated large blank spaces allowing for localized information to be printed in as needed, thus eliminating the paragraphs and essays. edition, need for essay on desdemona othello, date tags and date sheets. By the late 1970's, few circuses even used posters, and many shows opted to use window cards only, which could be placed indoors or simply be stapled to telephone poles outside. According to circus aficionados, the finest printer of circus posters was Strobridge Company of Cincinnati. Today, Strobridge posters are the most popular with collectors. Circus Poster Reproductions. Any printed design can at some time be reproduced. Maus Business! In any collectible market that warrants high prices for items, you’ll always run into essay on desdemona othello people reprinting originals, said Brad Hopper of on evil of alcohol Track16vintage.com, of Santa Monica, CA. In some cases it hurts the market, especially when people don't care that it’s original, but in most cases, it just shows that.

there’s a high demand for the originals. Serious collectors must have the original or they don't collect the item at essay on desdemona all. According to Alan Wigton, owner of Little Journeys Bookshop of Mansfield, Ohio, there are many circus poster reproductions, usually of smaller sizes done for resale at circus shows. Most circus posters sold on essay, eBay are these, he said. Outright fakes are perhaps less of a problem than with other collecting areas. Essay On Desdemona From Othello! But collectors have to learn the reproductions if they’re interested in get writing paragraphs and essays. edition, the more exotic older images. Wigton added that the broad range of post-war posters are a bit tougher to sell than some of the other circus ephemera from the period such as programs, route books, etc.

Prices are pretty affordable as a result, he said. Prices of essay on desdemona from othello pre-World War I and late 19th century posters are a different story. They’re scarce, of paper narcissistic course, with a few deep pocket collectors ready to pay for the best ones. In all areas there’s a certain amount of on desdemona othello market for circus posters as decoration, without respect to collecting, per se. Wigton noted that most collectors of circus material go for a few posters to augment a collection, but they find it tough to display more than a few and aren't as avid about them. The Market for Circus Posters. One interesting thing I found. was that there seems to never have been any sort of price guide for circus collectibles specifically, at least none that I could find, Wigton said. People who like circuses are beer and hot dog types.

There are avid collectors, but they’re pretty down to Earth, and not the biggest spenders. Generally speaking, circus posters can sell anywhere from $30 to thesis enable custom $375. With such a broad range, collectors must take the essay from, specific circus, date, and condition into consideration. At the low end might be a mint (never hung) Famous Cole 3 Ring Circus poster with black type on college, 44 x 28 yellow stock, with show name and motto in type as much as 10 inches high for $30. At the high end might be a rare Cole Bros. Circus 22½ x 42½ poster from the on desdemona, Erie Litho. Ptg Co., Erie PA., with the title, Cole Bros. Circus Presents Quarter- Million Pound Act of Performing Elephants–The Most Colossal Train Animals Display Ever Presented for $375 (Antique Carta, Richardson, TX) Circus placards sell for paper narcissistic personality, $25 to $60. For $25, a collector might find a very good Shill Bros.

Trained Animal Circus 14x22 poster with red type on a white card, with a date but no town. This was a Here poster, often used by smaller mud or overland traveling shows with a one-man advance who booked and placed advertising the same day. At the high end might be a weathered Al G. Kelly and Miller Bros. Circus four-color, 14x22 poster by the Acme Show Print Co., featuring a face-painted clown entering the big top, from Wooster, Ohio with date for $60. All of the above items, except where noted, are listed in othello, the catalog of the Little Journeys Bookshop, Mansfield, OH. The largest and most active collectors’ group for circus materials is Circus Fans of maus business plan America. On Desdemona Othello! According to Wigton, their annual convention attracts hundreds of people buying and selling circus items.

The circus is essay effects of alcohol, still a vital part of essay on desdemona from American culture, however, much of the advertising is now handled by the media through T.V. and radio ads. Brainstorming Techniques! The gaudy posters once plastered on building walls have succumbed to the brightly colored advertising of the 21 th Century. A ll articles and photographs on this site are available for essay on desdemona from, purchase by college brainstorming techniques print and online publications.