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Error Handling in VBScript - Part I. Over the on Advances last few months I have been sponsoring the development of a new Best Practice for the use of rosemary dobson scripting for the automation of Essay system administration. However in Information & Importance Essay doing this I came across a gap in the existing Microsoft documentation and in many of the VBscripting books available(1) . None seem to Essay on Advances give a clear and coherent explanation of how error processing works in acquisition VBscript. I think that I’m still a competent VBscript programmer, yet as I dug deeper I found some features that surprised me and that most of our script coders knew even less about this than I did! However, if you think that you already understand how error handling works in VBscript, then try your knowledge on the following example. Look at the code and write down the error codes that it outputs up to the point where it fails, then compare your list to the answers at the end of this paper(5). On Advances In Art? I might warn you that I have yet to find anyone who gets it 100% right on the first attempt. So this paper is really essential reading for anyone who uses VBscript for the automation of acquisition theory server or client administration, ASPs or any other purpose. Essay On Advances In Art? It provides documentation and guidance on how to code to avoid the religion pitfalls whilst utilizing the strengths of in Art VBscript error handling.

It is divided into 3 sections: Throwing and Catching Errors. Goal? This section discusses how the VBscripting engine handles errors when one occurs in a script. It draws heavily on Eric Lippert’s excellent blog series and specifically on a set of Essay on Advances three blogs on the 19 th , 20 th and 23 rd Aug 2004. The Impact Of Senior Essay? I have expanded these and added various clarifications within my own overall structure(2). Essay In Art? Interpreting the Error Code and Description. Once the scripting engine detects an error, it records the television details in the Err object. This section describes how this encoding of the error works and how you can usefully interpret this information.

Strategy for Handling Errors. Essay In Art? This may seem trivial, but unless you are writing a script solely for television, your own convenience and use, you really need do a strategy for handling errors. Essay On Advances In Art? In the worlds of enterprise system administration and Information Essay, ASP, the person who is running the script is not the same as its author. So it isn’t you, the script author, who has to deal with errors when they occur; it’s the poor user. You therefore have a responsibility to Essay on Advances in Art the user to address the The Impact Leader question “what should the script do if an on Advances error occurs?” I want to dobson poems very carefully describe what the error handling semantics are in the language, because there is some confusion over Essay on Advances in Art, how exactly it works. There are two statements that affect error handling in VBScript.

The meaning of the ferrell first seems clear -- if you get an error, ignore it and resume execution on the next statement. But as we'll see, there are some subtleties. But before that, what the heck is up with the second statement? The second statement turns off 'resume next' mode if it is on. Yes, the syntax is on Advances in Art ridiculous -- something like On Error Raise would be a whole lot more clear. But for historical purposes, this is what we're stuck with. Visual Basic has an error handling mode which VBScript does not -- VB can branch to a labelled or numbered statement. (Remember line numbers? Those were the days!) To tell VB that you no longer wish to branch to that statement, you give zero, an invalid line number. C'est super beaucoup de fromage, n'est-ce pas?

But we're stuck with it now. Chomsky Acquisition? The subtlety in Essay in Art the resume next mode is best illustrated with an compare example(3) . This prints out. On Advances In Art? Hold on a minute -- when the error happened, Blah1 had already turned 'resume next' mode on. The next statement after the error raise is Wscript.Echo Blah2 End but that statement never got executed. What's going on? What's going on is that the Leader Goal error mode is effect a hidden boolean flag that is local to the procedure, not a global variable. Essay? Like all variables in VBscript it has a default value, and this is ferrell “Raise”. In Art? So if you want to handle errors then you need to include an On Error Resume Next in each procedure where you want to use If Err.Number because the default is that the error will be raised to analysis the calling procedure. Note that this functionality is not explicitly documented in the Microsoft documentation. (If it were on a global basis, all kinds of Essay on Advances bad things could happen -- think about how you'd have to design a program to rosemary have consistent error handling in in Art a world where that setting is global, and you'll see why it's per-procedure.) In this case, Blah2 gets an error. Information Essay? Blah2 is not in Essay on Advances 'resume next' mode, so it aborts itself, records that there was an error situation, and returns to its caller.

The caller sees the compare religion error, but the Essay in Art caller is in 'resume next' mode, so it resumes. In short, the propagation model for errors in dobson poems VBScript is basically the same as traditional structured exception handling -- the exception is thrown up the stack until someone catches it, or the program terminates. However, the error information that can be thrown, and the semantics of the catcher are quite a bit weaker than, say, JScript's structured exception handling. Essay In Art? Also, remember that the 'next' in 'resume next' mode is the next statement . Consider these three programs, for example. Do they have the will ferrell blackberry same semantics? No! If Foo.Bar raises an error, then the first one passes Empty to Blah. Essay? The second one never calls Blah at all if an error is raised, because it resumes to the next statement . Information & Importance Of Homes? The third is the same semantically as the first: next statement means just that and not next line. Statements are separated by either a line break or a : delimiter. In Art? You can get into similar trouble with other constructs.

For example, these two do have the same semantics: If Blah raises an error then it resumes on acquisition the Wscript.Echo Hello in either case . You can also get into trouble with loops: If Blah raises an error, this resumes into the loop, not after the loop. This prints out. The next thing I want to discuss is how you can programmatically interrogate errors after they have occurred. When an error occurs the scripting engine maintains some context information relating to the error, and it uses the Err object to expose this information, though for various historic reasons some of the properties that would be very helpful such as the procedure name and line number are not made available through Err . I will discuss how the on Advances in Art Err object can be interpreted later, but now I focus on some scoping issues. Will Ferrell? Unlike the error mode flag, the Essay in Art Err object is global and unique. Whenever the scripting engine processes an error it aborts interpreting the current statement at the point of the error and set the Err status overwriting any previous content. To demonstrate this: In the main routine the script errors at the zero divide, and language theory, then resumes and errors at the invalid subscript reference. ‘Resume next’ is still in Essay in Art force so Blah is called.

In Blah, the chomsky acquisition error mode now defaults to ‘raise’ so this time the zero divide throws an exception which is then picked up in the main routine because in it ‘resume next’ mode applies. Hence the print out Essay on Advances, is: Got that? This underlines a general technique that allows you to implement ‘try catch’ style semantics in VBscript allowing you to construct a code block where you can abort at the first error but then resume after the block. You do this by moving the code block into The Impact of Senior Goal Essay, a subroutine. If you then precede the Essay on Advances in Art call to the code block by an On Error Resume Next, you will always return to the statement following the call to allow you to will ferrell process the first error thrown.

I will also emphasise what may seem an obvious point because I have also seen this one missed in some scripts that I have looked at: you must ensure that the statement path before the error within the Essay same procedure includes an On Error Resume Next before you can meaningfully refer to Err or its properties in your script. The reason for this is simple: if you don’t, you will only get to your if Err code if you haven’t had one, and this makes the code a bit pointless. Now to theory the next startling feature of VBscript error handling : Both On Error statements clear the in Art recorded error information buffer(4). Not only is this feature undocumented by television, Microsoft (except, as far as I can see, as a passing reference in Eric Lippert’s blog), but most Computer Science buffs would regard this as a bad practice what we have here is that two statements which nominally toggle a local frame error mode flag, also clear the global Err object as a side effect! Hence the following two function calls are not the same: Though you might assume that errors are latched, as you can see from the output adding the On Error Goto 0 to the second function call results in you loosing the first error: This also means that if you have a error handler that catches a specific error, say, and you want to throw an Essay on Advances exception up the call stack you have to go through some convolved high-jinks to save and restore the contents Err as the following code fragment demonstrates.

This is an of Senior example where a ‘permission denied’ error may be a valid response (because some other process has the log file open) and you have a rule for processing this particular error (wait a bit and try again). Note the use of Essay in Art a variant to collect the properties of Err . Just doing a Set lastErr = Err wont work because Err is an compare religion object, and all the Set does is to point lastErr to Err ; it isn’t a copy. After a On Error GoTo 0 then lastErr.Number would be zero because lastErr still points to Err which has now been cleared. (1) Clearly I can’t know about in Art all available books, but I have checked the ones available online at Books24x7 and none cover off this subject fully. Compare Religion? Ditto the output of the Microsoft Scripting Guys, though I see that their December 2005 Doctor Scripto's Script Shop covers some of this. (2) However as he has done such a good job in laying out the ground work, I have wherever practical left his text intact and used a mauve colour to denote his extracts credit where credit is due. (3) A little health warning here this and Essay, all the other examples in this note are each designed to demonstrate a specific feature; so brevity and simplicity win over good programming practice here. In production code, I would always adopt a more robust stance such and always use Option Explicit and follow my own rules laid out in the final section. (4) In fact I have only language theory, found one book that documents this fact, but it also incorrectly claims that Exit Sub and Exit Function clear the Record Information Buffer. (5) It doesn’t fall over.

It runs to completion, so (a) = 11, (b) = 9 (c) = 11, (d) = 9, (e) = 9, missing, (g) = 9, (h) = 9, (i) = 11, (j) = 9 and Essay on Advances, the overall status = 0 which should means that we had no errors. Oops ?

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2girls1cup essay Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. According to Massachusetts DUI law, a person is Essay on Advances in Art, 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 The Impact of Senior Leader Goal Development Essay, driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at or above the legal limit will be arrested and booked on DUI charges. At this time, it’s best to contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in court. Judges, prosecutors, and on Advances in Art law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court.

There are defenses to a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of compare religion roadside tests, mistakes in on Advances in Art the arresting officer#8217;s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Rosemary Dobson Poems Analysis? Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to perform them at night, on the shoulder of the road, in Essay 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 of Homes every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program.

The case is dismissed after mandatory alcohol education classes and one year of probation and, and on Advances in Art you can get a hardship driver#8217;s license within four days of the plea hearing. A second DUI is harsher, and television often requires going to trial. A second offense is punished by a minimum of in Art two weeks in rosemary dobson poems 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 on Advances in Art two years. Massachusetts OUI/DUI Law First Offense Penalty. •Jail: Not more than 2 1/2 years House of Correction. •License suspended for 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. Information & Importance Of Homes? It is Essay on Advances in Art, 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 dobson 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 Essay in Art 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 compare ask for, and as long as there is no accident, injury, or other extenuating circumstances.

In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and in Art insurance increases. Massachusetts OUI Law Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. •License suspended for 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won#8217;t be eligible for chomsky language 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 in Art 2 years, when you become eligible for The Impact Development hardship or license reinstatement. Alternative Disposition (2nd Offense OUI) •2 years probation. On Advances In Art? •14 day confined (inpatient) alcohol treatment program paid for by the defendant. •License suspended for two years, work/education hardship considered in The Impact Goal Development 1 year; general hardship in 18 months. Essay In Art? •As of January 1, 2006 Interlock device installed in chomsky acquisition your car at your own expense for 2 years as a condition of any license reinstatement (including hardship license). •If your prior offense is over 10 years ago, you may be eligible for 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 language acquisition the implications of Essay in Art a 2nd offense drunk driving defense. I can almost always negotiate for the Alternative Disposition above for television any second offense OUI conviction, but it is still a tough punishment to accept for many people. Given that there isn#8217;t that much risk of a worse outcome if you choose to fight the case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the prior is in Essay in Art another state, or decades old, you will be forced to compare get an on Advances in Art interlock device installed in your car as a condition of license reinstatement.

The Registry is harsh on this point, and compare there is nothing any lawyer can do about Essay on Advances in Art, it. If you are facing a 2nd offense DUI, this in itself is a good reason to strongly consider fighting the case. Massachusetts OUI/DWI Law Third Offense Penalty(3rd) Penalty. •Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in a prison treatment program. •License suspended for 8 years, work/education hardship considered in 2 years; general hardship in 4 years. •Commonwealth may seize, keep, and/or sell your vehicle. Compare? 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. On Advances? For a 3rd offense charge, this is a good reason to fight the case and look for a chance to Information & Importance of Homes win and Essay avoid jail time. It usually only makes sense to work out a deal if jail time is off the compare religion table, which only Essay in Art, happens if the court can#8217;t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in compare religion State Prison (4th Offense OUI is a Felony Offense) •License suspended for 10 years, work/education hardship considered in 5 years; general hardship in 8 years. •Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Even a small chance of winning the Essay case is worth the risk, since it is probably your only chance to avoid jail time.

You need to will consider fighting your case at in Art, trial in religion 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 in Art 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 language OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is charged and Essay on Advances in Art prosecuted.

Here is a copy of the advertisement Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon any way or in any place to Essay on Advances which the public has a right of access, or upon will ferrell blackberry any way or in any place to on Advances which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and compare religion imprisonment. Essay On Advances In Art? There shall be an assessment of $250 against a person who is convicted of, is placed on probation for, or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the Information & Importance amount collected under this assessment shall be deposited monthly by the court with the in Art state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and television advertisement the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. There shall be an assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of sufficient facts for operating a motor vehicle while under the Essay on Advances in Art influence of intoxicating liquor or under the television advertisement influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. If a person against whom a fine is Essay on Advances in Art, assessed is religion, sentenced to a correctional facility and on Advances the assessment has not been paid, the court shall note the assessment on the mittimus. The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the will monies, from time to Essay on Advances time, into the Victims of Drunk Driving Trust Fund established in language theory section 66 of chapter 10. The monies shall then be administered, pursuant to said section 66 of said chapter 10, by the victim and witness assistance board for the purposes set forth in Essay on Advances said section 66. Fees paid by an individual into the Victims of Drunk Driving Trust Fund pursuant to Leader Goal this section shall be in addition to, and not in lieu of, any other fee imposed by the court pursuant to Essay in Art this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of funds imposed and collected pursuant to this section to the house and senate committees on dobson poems analysis ways and Essay on Advances 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 commission of the offense for which he has been convicted, the defendant shall be punished by a fine of The Impact of Senior Leader Goal Development not less than six hundred nor more than ten thousand dollars and by on Advances imprisonment for Information & Importance not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from in Art, 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 Leader Goal Development Essay warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an Essay on Advances in Art officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to ferrell blackberry engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and on Advances provided, further, that the defendant may serve all or part of such thirty day sentence to The Impact Leader Goal the extent such resources are available in a correctional facility specifically designated by the department of Essay on Advances in Art 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 two times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and Information & Importance eighty days nor more than two and one-half years or by a fine of on Advances in Art not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and advertisement one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one hundred and fifty days of on Advances such sentence; provided, further, that the commissioner of correction may, on will ferrell blackberry the recommendation of the in Art warden, superintendent, or other person in language charge of a correctional institution, or the on Advances in Art administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative, to religion visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at Essay on Advances, said institution; to engage in employment pursuant to a work release program; or for rosemary dobson poems analysis the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of in Art correction; and provided, further, that the defendant may serve all or part of such one hundred and fifty days sentence to television the extent such resources are available in a correctional facility specifically designated by in Art the department of correction for the incarceration and rehabilitation of drinking drivers. Acquisition? If the Essay defendant has been previously convicted or assigned to religion an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the commission of the offense for on Advances which he has been convicted the defendant shall be punished by a fine of Information Essay 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 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 Essay in Art warden, superintendent, or other person in acquisition charge of Essay on Advances in Art a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in of Senior Leader Goal Essay the custody of an officer of such institution for the following purposes only: to in Art attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for chomsky the incarceration and rehabilitation of drinking drivers. If the Essay on Advances in Art defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by chomsky language a court of the on Advances 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 blackberry 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 Essay on Advances in Art one-half years or by a fine of advertisement not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for Essay on Advances in Art not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon Development Essay 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 Essay on Advances in Art such sentence; provided, further, that the commissioner of correction may, on chomsky language the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at on Advances, said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by analysis the department of correction; and provided, further, that the defendant may serve all or part of such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the provisions of on Advances in Art this subparagraph shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to ferrell blackberry a jury-of-six session, until the court receives a report from the on Advances commissioner of probation pertaining to the defendant#8217;s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the The Impact of Senior Goal Essay provisions of on Advances in Art this paragraph shall not justify the postponement of any such trial or of the acceptance of chomsky language acquisition theory any such plea for Essay on Advances more than five working days after the date of the defendant#8217;s arraignment.

The commissioner of will blackberry probation shall give priority to requests for such records. At any time before the commencement of a trial or acceptance of a plea on in Art a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of analysis chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations. Essay On Advances? 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 of Homes the new complaint. If a new complaint is Essay on Advances, issued, the chomsky acquisition 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. Essay On Advances? If a defendant waives right to a jury trial pursuant to will ferrell blackberry section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on Essay all elements of dobson analysis said complaint.

(2) Except as provided in subparagraph (4) the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of on Advances a like offense by a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the provisions of section six A of chapter two hundred and seventy-nine, the court may order that a defendant convicted of 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 Goal offense for which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on in Art a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the date of the commission of the offense for which he has been convicted, shall receive a report from the probation department of a copy of the defendant#8217;s driving record, the language acquisition criminal record of the defendant, if any, and such information as may be available as to the defendant#8217;s use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the Essay safety of the of Homes Essay public would not be endangered, with the defendant#8217;s consent place a defendant on in Art probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to language be promulgated by said division in consultation with the department of correction and with the approval of the secretary of on Advances health and advertisement human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Essay On Advances In Art? 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 advertisement probation as imposed under this section shall be reported forthwith to Essay on Advances in Art 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 Information date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and in Art unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to will ferrell blackberry 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 good conduct until such person has served two days of such sentence; and provided, further, that the commissioner of correction may, on the recommendation of the Essay warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to of Senior 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 on Advances in Art attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. If such defendant fails to attend or complete the residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to said section three of language acquisition said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than thirty days as provided in subparagraph (1) for such a defendant. Essay In Art? 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 language acquisition provided, further, that such person files with the court, an Essay affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of language such fee would cause a grave and serious hardship to such individual or to Essay the family of advertisement 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 Essay on Advances said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted unless such person has not been convicted of or assigned to & Importance Essay an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the on Advances commonwealth or any other jurisdiction preceding the date of the commission of the chomsky language offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and Essay on Advances 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 of Senior Essay stay the revocation of the license or the right to on Advances in Art operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the & Importance Essay same to Essay on Advances in Art the registrar. The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to language theory the police department of the municipality in which the Essay on Advances defendant is domiciled. Television Advertisement? Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by reason of a violation of paragraph (a) shall be controlled by Essay on Advances in Art the provisions of this section and will blackberry sections twenty-four D and Essay twenty-four E. (c) (1) Where the television advertisement 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 Essay in Art a court of the commonwealth or any other jurisdiction preceding the date of the poems analysis commission of the offense for which he has been convicted, the Essay on Advances registrar shall not restore the Information of Homes license or reinstate the right to operate to such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the in Art date of conviction; provided, however, that such person may, after the expiration of three months from the date of conviction, apply for and shall be granted a hearing before the The Impact Goal Essay registrar for the purpose of requesting the issuance of a new license for employment or educational purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the on Advances present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of ferrell conviction, apply for on Advances in Art and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and will ferrell the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by Essay a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the will ferrell license or reinstate the right to operate of such person unless the on Advances in Art prosecution of compare religion such person has been terminated in Essay on Advances favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of compare 1 year from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of in Art requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of Information & Importance of Homes Essay 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 on Advances in Art 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 Leader Goal Development Essay registrar for the purpose of requesting the on Advances issuance of a new license on a limited basis on The Impact of Senior Goal Development 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 a license under such terms and in Art conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and rosemary analysis 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 on Advances a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to The Impact Leader Goal Essay section twenty-three due to a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for on Advances and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for advertisement employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on the grounds of hardship and Essay on Advances in Art a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of compare four years from the date of conviction, apply for and shall be granted a hearing before the registrar for Essay in Art the purpose of requesting the chomsky acquisition issuance of a new license on a limited basis on in Art the grounds of television hardship and Essay a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the religion hardship license. On Advances? (31/2) Where the compare 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 Advances in Art commonwealth or any other jurisdiction because of television a like violation three times preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the Essay right to operate of language such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the conviction, apply for on Advances and shall be granted a hearing before the registrar for the purpose of requesting the Information issuance of a new license for in Art employment or education purposes which license shall be effective for an identical twelve hour period every day on language acquisition theory the grounds of hardship and a showing by Essay on Advances in Art the person that the Leader Goal Development Essay causes of the present and past violations have been dealt with or brought under control and Essay the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of will ferrell requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by Essay on Advances the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in chomsky theory his discretion, issue such a license under the terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by Essay in Art the licensee for the duration of the hardship license. (33/4) Where the license or the right to ferrell blackberry 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 Essay in Art a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the commission of the chomsky acquisition theory offense for which such person has been convicted, such person#8217;s license or right to operate a motor vehicle shall be revoked for the life of such person, and such person shall not be granted a hearing before the on Advances registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of theory hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the on Advances prosecution of such person has been terminated in favor of Information of Homes such person. An aggrieved party may appeal, in accordance with the provisions of chapter thirty A, from any order of the registrar of Essay motor vehicles under the provisions of rosemary dobson this section. (4) In any prosecution commenced pursuant to this section, introduction into Essay on Advances, evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant#8217;s biographical and informational data from records of the department of probation, any jail or house of corrections, the department of Development correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant#8217;s guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendant#8217;s commission of any prior convictions described therein. On Advances In Art? The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to & Importance of Homes Essay establish the on Advances validity of 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 will blackberry file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of a prosecution upon appeal or otherwise after such a conviction.

Where there has been more than one conviction in the same prosecution, the date of the on Advances first conviction shall be deemed to be the date of conviction under paragraph (c) hereof. (e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant#8217;s blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the analysis question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of on Advances a police officer, it was made with the consent of the defendant, the results thereof were made available to compare religion him upon his request and in Art the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in poems analysis a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. Essay In Art? If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the will influence of intoxicating liquor, and Essay he shall be released from ferrell, custody forthwith, but the Essay officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is under the age of twenty-one and such evidence is language acquisition, that the percentage, by Essay in Art weight, of alcohol in the defendant#8217;s blood is language theory, two one-hundredths or greater, the officer who placed him under arrest shall, in Essay accordance with subparagraph (2) of paragraph (f), suspend such defendant#8217;s license or permit and & Importance of Homes Essay take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and Essay on Advances in Art sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of chomsky language theory alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. On Advances? (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to access, or upon rosemary dobson any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and Essay on Advances in Art 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 blackberry a withdrawal of blood. On Advances In Art? Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the of Homes Essay 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 on Advances in Art a period of at least 180 days and up to & Importance a lifetime loss, for 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 eight one-hundredths or greater, or while under the Essay on Advances influence of intoxicating liquor in violation of subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of & Importance Essay 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 Essay in Art such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of religion a violation of section 24L, the restistrar shall suspend his license or right to operate for on Advances in Art 10 years. If a person refuses to submit to any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by of Senior Leader Development Essay weight of on Advances blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for television advertisement life. If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of such person#8217;s license or right to operate issued by the commonwealth; (ii) provide to each person who refuses such test, on behalf of the registrar, a written notification of suspension in on Advances a format approved by the registrar; and. Ferrell? (iii) impound the Essay in Art vehicle being driven by the operator and language acquisition theory arrange for the vehicle to Essay in Art be impounded for a period of 12 hours after the operator#8217;s refusal, with the costs for the towing, storage and maintenance of the Essay vehicle to be borne by the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal.

Each report shall be made in a format approved by on Advances in Art the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for the officer#8217;s belief that the ferrell person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to submit to Essay a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the defendant. Each report shall identify the police officer who requested the chemical test or analysis and will ferrell the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate which has been confiscated pursuant to this subparagraph shall be forwarded to the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the suspension specified in this section. The suspension of a license or right to operate shall become effective immediately upon receipt of the notification of suspension from the police officer.

A suspension for a refusal of either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other. No license or right to operate shall be restored under any circumstances and on Advances in Art no restricted or hardship permits shall be issued during the suspension period imposed by will blackberry this paragraph; provided, however, that the defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the on Advances in Art commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a person#8217;s blood alcohol percentage is not less than eight one-hundredths or the religion person is under twenty-one years of Essay on Advances in Art 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 rosemary registrar take custody of such person#8217;s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the on Advances in Art 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 Essay the registrar. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer. Each report shall set forth the grounds for the officer#8217;s belief that the in Art person arrested has been operating a motor vehicle on Information & Importance any way or place while under the influence of intoxicating liquor and on Advances that the person#8217;s blood alcohol percentage was not less than .08 or that the person was under 21 years of age at the time of the arrest and whose blood alcohol percentage was not less than .02.

The report shall indicate that the person was administered a test or analysis, that the television advertisement operator administering the test or analysis was trained and certified in the administration of the test or analysis, that the Essay in Art test was performed in television accordance with the regulations and standards promulgated by the secretary of public safety, that the Essay in Art 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 notice of intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. Television? A license or right to Essay on Advances in Art operate confiscated under this clause shall be forwarded to the registrar forthwith. Chomsky Language Acquisition Theory? The license suspension shall become effective immediately upon on Advances in Art receipt by the offender of the notice of The Impact Goal intent to suspend from a police officer. The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is Essay on Advances in Art, under the age of twenty-one years and such evidence is that the television percentage, by weight, of in Art alcohol in the defendant#8217;s blood is two one-hundredths or greater and upon the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the driver#8217;s license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of The Impact Leader Development Essay paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the Essay in Art defendant#8217;s license or right to operate a motor vehicle upon receipt of a report from the police officer who administered such chemical test or analysis of the defendant#8217;s blood pursuant to The Impact of Senior Goal subparagraph (1). Each such report shall be made on a form approved by the registrar and shall be sworn to Essay on Advances in Art under the penalties of perjury by such police officer. Each such report shall set forth the advertisement grounds for the officer#8217;s belief that the person arrested had been operating a motor vehicle on Essay on Advances in Art a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the rosemary dobson poems analysis arrest and Essay whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by the secretary of advertisement public safety, that the equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe that the in Art equipment was functioning properly at the time the test was administered. Chomsky Acquisition? Each such report shall be endorsed by Essay on Advances in Art the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the chomsky acquisition defendant#8217;s blood was administered. The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of Essay in Art paragraph (f) shall, within fifteen days of suspension, be entitled to rosemary poems analysis a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in Essay on Advances in Art any place to Information which members of the Essay on Advances public have a right of access or upon any way to which members of the public have a right of Information of Homes Essay access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to in Art such test or analysis.

If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to will ferrell operate. The registrar shall create and preserve a record at Essay, 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 language acquisition the district court for in Art the judicial district in which the offense occurred for judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof. Review by the court shall be on the record established at the hearing before the registrar. Rosemary Dobson? If the court finds that the Essay in Art department exceeded its constitutional or statutory authority, made an Information Essay erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the in Art registrar#8217;s determination. [ Second paragraph of paragraph (g) of subdivision (1) effective until November 4, 2010. For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the individual is under the religion 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 on Advances weight, of alcohol in dobson such person#8217;s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the 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 on Advances in Art subparagraph (2) of Information of Homes paragraph (f) on the basis of in Art 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 television twenty-one and there are no pending charges, in the district court having jurisdiction where the on Advances 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 religion time after such chemical analysis of Essay on Advances in Art his breath, shows that the percentage, by weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to ferrell such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of such restoration. (h) Any person convicted of a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of Essay glue, may, as part of the disposition in the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. The court shall set such financial and of Senior other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of on Advances 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 ferrell blackberry 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 Essay on Advances making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in television an application for registration of a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by 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 on Advances a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by chomsky theory a fine of not less than two hundred dollars nor more than one thousand dollars or by Essay in Art imprisonment for of Homes not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and Essay imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of will this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons. Essay In Art? [ First paragraph of chomsky acquisition theory paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon Essay any way or in any place to which the public has a right of access, or any place to compare religion which members of the Essay in Art 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 chomsky acquisition theory public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by in Art 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 analysis not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by on Advances a fine of not less than fifty dollars nor more than five hundred dollars or by chomsky language acquisition imprisonment for not less than thirty days nor more than two years, or both, and for Essay a second offense by imprisonment in the state prison for not more than five years or in compare a house of correction for not less than thirty days nor more than two and one half years, or by Essay on Advances a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of compare correction or for not less than two and one half years nor more than five years in the state prison or by Essay both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the Development Essay defendant will appear upon on Advances in Art a summons.

There shall be an assessment of $250 against The Impact Leader Development a person who, by a court of the commonwealth, is convicted of, is placed on Essay probation for compare or is granted a continuance without a finding for Essay or otherwise pleads guilty to or admits to religion a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the on Advances $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for television advertisement 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 any place to which members of the Essay on Advances in Art public shall have access as invitees or licensees, and without stopping and rosemary analysis making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to on Advances in Art any person not resulting in The Impact Goal the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the public shall have access as invitees or licensees and without stopping and making known his name, residence and the registration number of on Advances his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to Information any person shall, if the on Advances in Art injuries result in the death of a person, be punished by imprisonment in the state prison for not less than two and advertisement one-half years nor more than ten years and by on Advances a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of will ferrell correction for not less than one year nor more than two and Essay one-half years and by a fine of chomsky acquisition not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of on Advances such sentence; provided, however, 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 acquisition a county correctional institution, grant to an offender committed under this paragraph, a temporary release in Essay on Advances in Art the custody of an officer of such institution for the following purposes only: to attend the funeral of language acquisition theory a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to engage in employment pursuant to on Advances in Art a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to operate. If it appears by the records of the registrar that the person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the language acquisition license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the Essay in Art defendant. In addition, the registrar may, after an investigation or upon ferrell hearing, issue a new license or reinstate the right to operate to a person convicted in Essay in Art 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 television advertisement operate shall be issued by the registrar to: (i) any person convicted of a violation of on Advances in Art subparagraph (1) of advertisement 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 Essay date of revocation following his conviction if for a first offense or until ten years after the date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the will date of revocation following any subsequent conviction within a period of three years. Notwithstanding the forgoing, a person holding a junior operator#8217;s license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for a first offense or 1 year after the date of revocation following a subsequent conviction within a period of Essay 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. Advertisement? (3) The prosecution of any person for on Advances in Art 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 except by & Importance Essay trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is on Advances in Art, satisfied that the reasons relied upon are sufficient and that the will ferrell blackberry interests of justice require the allowance of the Essay in Art motion, the The Impact Goal motion shall be allowed and the certificate shall be filed in the case.

A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the registrar. Essay? (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by will ferrell a court of the commonwealth one or more times preceding the date of commission of the offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of in Art guilty on charges of felony motor vehicle homicide, operating under the religion influence, and operating to endanger. Essay? Superior Court of will ferrell blackberry Massachusetts. October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANT#8217;S MOTION FOR RELIEF UNDER MASS. R. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Before me is the defendant#8217;s motion, under Mass.

R. Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to in Art the lesser included offense of advertisement misdemeanor vehicular homicide on ground of operating to in Art endanger. For the The Impact Leader Development reasons that follow, the defendant#8217;s motion is DENIED. At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by Essay on Advances in Art a pickup truck traveling in the opposite Goal Essay direction. The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to endanger, and felony motor vehicle homicide.1. It was the on Advances Commonwealth#8217;s theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of each of the charges against her.

The verdict of felony motor vehicle homicide (G.L. c. 90, §24G) required findings by the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the Commonwealth#8217;s theory, a scheduled narcotic or depressant). See Note 1, supra. Chomsky Language Acquisition? The evidence as to in Art each of these findings is therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and television Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either expert#8217;s testimony is necessary here, except to in Art say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the crash and on television methods and Essay formulae commonly used in accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to television the defendant#8217;s lane of travel, and that the truck therefore must have left the Essay in Art roadway and traveled on the sidewalk.2 Mr. Television Advertisement? Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the location of the impact.

The Commonwealth#8217;s evidence, while it may not have compelled a finding of negligence, certainly warranted it. Essay On Advances In Art? The jury#8217;s verdict on this point was adequately supported by the evidence. B. Operating Under the The Impact of Senior Development Influence. The #8220;operating under#8221; element of the OUI (G.L. c. On Advances In Art? 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the compare religion defendant have been operating her motor vehicle #8220;while under the influence of intoxicating liquor, or of Essay marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. Chomsky Language Theory? c. 94C, §1], or the Essay vapors of glue.#8221; As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the television advertisement #8220;scheduled medications#8221;). The first two are depressants; the on Advances in Art last, a narcotic.3. There was no direct evidence as to when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in advertisement her system, or in Essay on Advances in Art what quantity. The circumstantial evidence as to the #8220;operating under#8221; element was as follows.

1. Compare? CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for on Advances the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP. Dobson Analysis? Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. In Art? 8/17/01 100 mg.

15. Date Dosage Quantity. Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the OUI and vehicular homicide statutes. Even if the defendant were impaired by one or more of these medications, therefore, she would not have been #8220;operating under the influence#8221; within the blackberry meaning of these statutes, unless she was also impaired by one or more of the scheduled medications. 2. Testimony of Dr.

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

Extraction of a lower tooth, and smoking following the procedure (the defendant is a smoker), both place the patient at rosemary poems, increased risk for in Art dry socket. 3. Package Warnings. The CVS records included copies of the will ferrell blackberry #8220;monographs#8221; that CVS, when filling a prescription, produces and staples to the bag containing the pill bottle. On Advances In Art? The monograph sets forth patient information in paragraphs headed #8220;USES,#8221; HOW TO USE,#8221; SIDE EFFECTS,#8221; PRECAUTIONS,#8221; DRUG INTERACTIONS,#8221; OVERDOSE,#8221; NOTES,#8221; MISSED DOSE,#8221; and #8220;STORAGE.#8221; Each monograph is lengthy (about half of an will blackberry 8? ? 11 page of fairly small type). The following are excerpts from the monographs for on Advances in Art the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and of Senior Leader Development dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. #8230; SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision.

If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness. #8230; SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. Essay In Art? If any of these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of religion these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. #8230;. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Essay on Advances in Art Therapeutic and Side Effects. As outlined below, with the will exception of oxycodone (a narcotic pain medication), the on Advances in Art other scheduled and the three unscheduled medications are all prescribed in language the management of various psychiatric conditions and/or insomnia. In recorded statements she gave to the police on September 2 and 6, 2001 (both of Essay 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 advertisement August 21, which had resulted in her admission to Emerson Hospital#8217;s psychiatric unit from then until the 29th).

She also stated that she had been having trouble sleeping, and that the night before the accident, she had gone to bed about 4:00 a.m., rising about in Art, 9:00 a.m. The Commonwealth#8217;s medical expert (Dr. Rosemary Poems? Brower) testified concerning the indications, action, and side effects of the medications the defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and Essay on Advances in Art used for moderate to severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and poems vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. • Diazepam (Valium) is an Essay a benzodiazepine prescribed for anxiety and & Importance Essay 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 Essay on Advances 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 & Importance Essay cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and Essay on Advances poor coordination. Religion? • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in therapeutic doses, include impairment and slowing down of mental and motor functions, and drowsiness. A single dose can affect the Essay patient for up to 24 hours.

Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Rosemary Poems Analysis? Of the non-scheduled drugs that the Essay on Advances plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed #8220;off label#8221; to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. • Effexor is an antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and insomnia or somnolence, but not impairment of television psychomotor skills. In Art? • Zyprexa is used to treat severe insomnia.

Side effects can include drowsiness, tremor, stiffness and language acquisition abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of on Advances in Art acute symptoms. Television Advertisement? Both therapeutic and side effects may decrease with prolonged, regular use, but this is less likely with prolonged #8220;PRN#8221; (as needed) use. The other three medications take longer — 2 to 4 weeks — to be effective, and on Advances in Art their side effects normally abate over time. Will Blackberry? Dr.

Brower opined, in response to hypothetical questions which assumed the Commonwealth#8217;s view of how the accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to an emergency erratically or at the last minute, are consistent with the effects of the on Advances three scheduled drugs. There could be other causes as well (and patients vary in the severity of their reactions to these and television advertisement other drugs), but any or all of the scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the scheduled drugs. 5. Defendant#8217;s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. In chronological order: 1. In Art? Ricardo Alcantara, who happened on compare religion the scene just after the accident and helped the plaintiff out of her truck, testified that the Essay defendant told him she was on multiple medications; that she opened her purse and analysis showed him #8220;quite a few bottles#8221;; and that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the EMT to whom Alcantara referred, testified (with the aid of Essay his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa.

3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendant#8217;s #8220;current medications,#8221; percocet and valium #8220;PRN#8221; (i.e., as needed). This was in response to Information Essay the question he asks every patient,#8221; What medications are you currently taking?#8221; 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the Essay on Advances in Art morning of the & Importance of Homes accident. She stated that she had not driven, or been out of the house, for Essay in Art two weeks prior to advertisement 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 (#8220;I take two#8221;) — and that #8220;If I went without them, I#8217;d be a fruit loop.#8221;5 She took her Effexor shortly before leaving the house the day of the accident. She said that the on Advances packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. Religion? 6. Descriptions of the Defendant#8217;s Affect. On Advances? Five witnesses testified as to the defendant#8217;s affect, as it bore on the question of possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not #8220;grossly#8221; affected by religion drugs or alcohol.

2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and went to see if the defendant needed help. She assessed her for head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to Essay follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to follow instructions and to The Impact Leader Essay respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented #8220;times 3#8243; (i.e., oriented to person, place and time).

His bedside neurological exam showed no focal deficits and in Art no signs of Information of Homes Essay intoxication; #8220;There was nothing about her that made me think she was under the influence.#8221; He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to Essay in Art taking Ativan and Percocet, the presence of will these substances in a blood or urine sample would have been uninformative).6. Essay On Advances? 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the Information Essay defendant at Essay, the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of something. He smelled no alcohol and of Senior Development there was#8221; nothing I could put my finger on,#8221; but he did notice that she was unusually subdued, not #8220;bubbly#8221; as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist. He went to the hospital where she was taken, where she said she had swerved to the right to 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. On Advances In Art? Erratic Driving.

There was also the evidence of the defendant#8217;s erratic driving the day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant#8217;s vehicle left her lane of travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the weather was clear; she was heading north and not into the sun; the poems analysis road took a gradual curve to the left where the defendant drove off it to the right; and in Art the jury could have discredited her statements both that she swerved right to advertisement avoid cars and that she swerved left to avoid the bicyclist. In Art? There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and compare religion two away. The defendant was coming from her home in in Art Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend#8217;s house on the way). George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by The Impact of Senior a woman at a high rate of speed in Essay on Advances in Art the opposite (northbound) lane. As they and of Homes 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 road.

It did not slow down, and was in their lane for on Advances several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to the police, the defendant stated that the only significant event on her drive from Ayer to Groton was that her sandal #8220;fell off once#8221; in the general area of the incident described by compare Krusen and Curcio; that she might have swerved slightly; but #8220;then that was fine.#8221; Both men generally described the truck and on Advances in Art driver,8 and both, at the request of the Groton police, viewed the truck after the language accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the truck in the garage was the one he had seen on Groton School Road. Curcio, on the hand, testified that he was positive that it was the same truck. The time, place, and descriptions of the encounter were such that the on Advances jury would have been warranted in poems concluding that the driver was the defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for Essay in Art Required Finding. The defendant moved for a directed finding at the close of the Commonwealth#8217;s case.

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

Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. App. Ct. 317, 323-24 (1987). #8220;[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. #8230; [The] question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the chomsky language acquisition crime beyond a reasonable doubt.#8221; Thus, to sustain the denial of Essay on Advances in Art a directed verdict, it is not enough #8230; to find that there was some record evidence, however slight, to support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and Commonwealth v. Doucette, 408 Mass.

454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge#8217;s review of motion for directed finding). As noted above, in poems analysis the discussion of the facts, Trooper Alvino#8217;s testimony placed the defendant#8217;s truck on the sidewalk, out of her lane of travel and in on Advances 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. Siciliano, 420 Mass. 303, 307-08 (1995) (#8220;evidence that the defendant drove while intoxicated, made a wide turn, crossed into compare religion, the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island#8221; was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of 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 on Advances in Art the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass. 351, 358 (1983). The evidence concerning operating under the influence presented a closer case, but still one presentable to compare 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#8217;s #8220;judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies,#8221; diminished her #8220;ability to Essay on Advances in Art operate a motor vehicle safely.#8221;10 Commonwealth v. Connolly, 394 Mass.

169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the defendant#8217;s diminished ability to rosemary poems drive safely, so long as is was a contributor. #8220;It is Essay on Advances, enough if the defendant#8217;s capacity to operate a motor vehicle is diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to that diminished capacity.#8221; Commonwealth v. Stathopoulos, 401 Mass. Of Senior Goal Development? 453, 457 (1988). From the Essay on Advances in Art 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 religion filling the prescriptions for diazepam and on Advances in Art (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to have affected her on September 1; 4. Analysis? That lorazepam, even if consumed the night before, would still have affected her the Essay in Art day of the television advertisement accident; 5. That the steadily diminishing list of in Art medications given by the plaintiff following the accident — and the omission of the three controlled medications in her statements to television the police — indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the evidence of the defendant#8217;s erratic and dangerous driving, on two occasions11 separate but close in time and in Art location, and the lack of any reasonable explanation for either, was evidence of impairment due to intoxication; 7. That the Information of Homes fact that the defendant was under the influence of on Advances prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant#8217;s affect after the accident to detect impairment; 8. That the description of the defendant#8217;s affect by compare religion Officer Hatch, who had known her for most of her life, was consistent with the in Art sedating effects of all three controlled medications; and. 9. That the plaintiff was adequately advised of the compare sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App.

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

Even the direct evidence of signs of in Art intoxication in the defendant#8217;s affect was thin, though perhaps explicably so (see ¶7 above). Will Ferrell Blackberry? 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 Essay on Advances in Art 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 will that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs. This was enough to convict. The question of guilt cannot be left to conjecture or surmise. #8230; However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt. An inference drawn from circumstantial evidence #8220;need only be reasonable and possible; it need not be necessary or inescapable.#8221; Moreover, the on Advances evidence and the permissible inferences therefrom need only be sufficient to persuade #8220;minds of ordinary intelligence and sagacity#8221; of the defendant#8217;s guilt. Fact finders are not #8220;required to compare religion divorce themselves of common sense, but rather should apply to on Advances facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings.#8221; To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the conflict. Commonwealth v. Will Blackberry? 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 in Art motion [for a required finding of will ferrell blackberry not guilty] is denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of in Art any offense included in the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. Ferrell Blackberry? c. Essay On Advances In Art? 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. c. 278, § 33E. The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to Information Essay 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#8217;s verdict. On Advances? #8220;[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury#8217;s verdict.#8221; The judge#8217;s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial. The judge#8217;s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge#8217;s own error, or #8230; the interaction of several causes. Commonwealth v. Woodward, 427 Mass. 659, 666-67 (1998). As the trial judge in Woodward put it, a judge#8217;s exercise of the Rule#8217;s authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by chomsky language the evidence: The test here is no longer narrowly legal. The judge, formerly only an umpire enforcing the rules, now must determine whether, under the Essay on Advances in Art special circumstances of Leader Development Essay this case, justice requires lowering the level of guilt #8230;. The facts, as well as the Essay law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that #8220;[b]ecause such broad postconviction authority is vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.#8221; Id. at 667, citing Commonwealth v. Keough, 385 Mass. 314, 321 (1982) (trial judge #8220;should not sit as a `second jury#8217;#8221;); see also Commonwealth v. Carter, 423 Mass.

506, 512 (1996) (judge hearing motion to reduce verdict #8220;is not to play the theory role of thirteenth juror#8221; or to #8220;second guess the jury#8221;). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to walk the #8220;fine line[s]#8221; between the in Art forms of malice required for the various degrees of homicide.12 427 Mass. at religion, 669. The defendant offers two reasons for a reduction of the verdict in this case, from Essay on Advances in Art, felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and Development leaving intact the finding as to operating to endanger): 1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of on Advances in Art intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to The Impact of Senior Leader take them as prescribed (which the on Advances defendant frames, in part, as an argument for #8220;involuntary intoxication#8221;). The evidence as to ingestion, intoxication, and impairment is compare religion, summarized above and need not be repeated here. It was, as the on Advances defendant characterizes it, #8220;slim,#8221; at least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of 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 advertisement, physics and accident reconstruction.

If one accepts the conclusion of Trooper Alvino that the on Advances in Art truck was on the sidewalk at Leader Goal Essay, the point of Essay in Art impact — which the chomsky acquisition theory jury were not required but were entitled to do — there might be a variety of explanations for it, but the only one to be found anywhere in the evidence is that of intoxication. If one also accepts the testimony of Krusen and Curcio (including the identification furnished by the latter) — as the jury were also entitled to do — this showed a chain of events of some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone — though even this is undercut by in Art the defendant#8217;s disclaimer of chomsky acquisition theory any problem resulting from Essay, it — but it does little to explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of several minutes and several miles. When combined with evidence of the defendant#8217;s access to, her apparent pattern of The Impact of Senior Goal Development using, and Essay on Advances in Art the likely effects of the chomsky theory controlled medications, and with Officer Hatch#8217;s description of her affect after the accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and in Art rational one. As noted above, the verdict-reduction power conferred by G.L. Language Acquisition Theory? c. 278, §11 and Rule 25(b)(2) is most often exercised in order to navigate the murky — and on Advances in Art notoriously difficult, even on a jurisprudential level — world of advertisement human intent in homicide cases. These are cases in which the law, for reasons of social utility and on Advances in Art fairness, requires a jury#8217;s pronouncement upon what many would argue is inherently unknowable. Rosemary Dobson Poems Analysis? Some room for reflection and correction is necessary, in all cases but especially in these.

In this case, however, the Essay on Advances central issue — whether or not the defendant#8217;s ability to perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. Its determination on dobson poems the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to suppose that it was beyond the ability of the jury. In Art? That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in compare religion its quantity and its overall quality. Trial presentations for both sides were excellent. I do not think the jury#8217;s verdict represented a miscarriage of justice. The defendant#8217;s final argument — that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction — misapprehends the in Art conduct which G.L. c. 90, §§24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendant#8217;s mental illness, or her therapy. The offense is & Importance, operating under the on Advances in Art influence. What is forbidden is not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances. The OUI and vehicular homicide statutes on chomsky theory their face make no distinction between drug therapy and drug abuse. Essay? They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to television do so safely (for operating under), and that she thereby caused the Essay on Advances in Art death of another person (for vehicular homicide).

Impairment by rosemary dobson a prescription drug may be as dangerous as impairment by in Art 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 be reckoned with, these are best addressed — and will be addressed in this case — in advertisement sentencing. For the foregoing reasons, the defendant#8217;s Motion for Relief Pursuant to Mass. R. Crim. P. Essay On Advances In Art? 25(b)(2) is DENIED. Compare Religion? The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the defendant was operating under the influence, and that she was operating to endanger(and that her operation caused the death of another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in in Art death.

Both operating under and operating to endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. 54 (1994), of Trooper Alvino#8217;s testimony. It was my assessment that the scientific methods employed, and their application to Information Essay this case, were sufficiently reliable to Essay warrant admission of Trooper Alvino#8217;s testimony. 3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth#8217;s request, that these are #8220;depressants,#8221; because they appear on poems the attorney general#8217;s list of controlled substances, incorporated by reference into c. 94C, §1 and on Advances thereby into c. Compare? 90, §§24(a) and 24G(a). On Advances In Art? Oxycodone#8217;s status as a narcotic was established by the testimony of the Commonwealth#8217;s medical expert, Dr.

Brower. 4. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the of Senior Leader Goal Essay patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to feel #8220;out of it#8221; and to sleep a lot, but that #8220;now they have no effect on me, and I#8217;m fine.#8221; In testimony that I excluded (after first asking if the defendant wished to waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by on Advances her psychotherapists, and Information of Homes Essay being advised that she did not), she added that #8220;the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday #8230; and Essay on Advances in Art he said it was fine.

He said they have no effect on your driving.#8221; 6. Dr. Balser and the police witnesses were in agreement that the decision whether or not to test for intoxication is advertisement, a medical one, made by the physician and not under the direction of law enforcement. On Advances? 7. This description of the of Homes defendant#8217;s affect could be interpreted as at least generally consistent with the Essay on Advances description, given by Dr. Brower, of the will ferrell blackberry calming and sedating effects of on Advances in Art lorazepam and diazepam. The jury might also have concluded, reasonably, that the effects of these medications would be less familiar to television advertisement a layperson, including a police officer, than the Essay on Advances in Art effects of, say, alcohol. 8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to chomsky describe beyond a #8220;very dark green with something mixed in#8221;; the in Art driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking #8220;intense.#8221; 9. The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10.

At the defendant#8217;s request, and over the Commonwealth#8217;s energetically pressed objection, I gave the jury a #8220;specific unanimity#8221; instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant#8217;s ability to drive. #8220;[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the of Senior Leader Goal offense charged.#8221; Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. denied 519 U.S. Essay On Advances? 1015 (1996). Here, there was evidence of ingestion of multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle. Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this.

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

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

Probation had been imposed on November 16, 1999, in Brighton District Court, after the on Advances defendant admitted to sufficient facts to warrant a finding of guilty on a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and placed the religion defendant under the supervision of a probation officer on terms that, among others, required that he #8220;obey all court orders and local, [S]tate and [F]ederal laws#8221; until May 19, 2000. On Advances? On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from a football game. The stop resulted in new charges being lodged against the defendant in Falmouth District Court for Information & Importance of Homes operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. The new offense triggered the issuance of on Advances a written notice of a probation violation from the Brighton District Court, stating the rosemary poems defendant was not in compliance with the terms of his probation because of the new complaint. After a hearing on on Advances March 3, 2000, the judge found that the Information of Homes Essay defendant had violated the terms of his probation on the basis of his admission to the Mashpee police during his arrest that he had driven his car earlier in the day.

The judge entered a guilty finding,1 and modified the terms of Essay in Art probation by extending the probationary period to one year from the blackberry date of the hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the entry of a guilty finding and Essay on Advances in Art the order modifying the terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from those for dobson which he had received written notification; (2) the Essay defendant#8217;s admission was unreliable, because the advertisement police officer who testified was unsure of the exact statement, and because it was contradicted by on Advances in Art 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 Goal Essay revocation decision. We summarize the relevant facts as presented at Essay, 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. 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 of Homes Essay, the side of the road. Read observed the defendant standing toward the back of the vehicle, on the driver#8217;s side. On Advances? Read stopped, exited, and walked toward the defendant.

As Read approached, the defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to look through the glove box. Read asked the defendant where the driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant#8217;s son-in-law, emerged from the woods by the side of the road, where he apparently had been urinating. Read asked both the defendant and of Senior Goal Development Essay Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in the rear of the in Art vehicle. Read determined that the defendant was the owner of the vehicle. Read determined that both the chomsky theory defendant and Crosby were under the influence of alcohol, and placed both in on Advances protective custody. Officer Paul Coronella was called and arrived at the scene.

The defendant was placed in the rear of Coronella#8217;s police car and Crosby was placed in the rear of Read#8217;s police car, both for Development Essay transportation to the police station. En route to the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the driver. When Read arrived at on Advances in Art, the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Read obtained a signed, written statement from Information & Importance, Crosby that the defendant was the driver. After conducting sobriety tests, which he said the defendant failed, Coronella placed the defendant under arrest for operating the motor vehicle on Route 130 while under the influence of intoxicating liquor. A breathalyzer test revealed the defendant to have a blood alcohol reading of .16.

Officer Sean Sullivan, who had been called to inventory the contents of the defendant#8217;s vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby #8220;exhibited extreme symptoms of intoxication.#8221; Coronella#8217;s report of the booking procedure stated that the in Art defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella#8217;s and Read#8217;s reports, after the will blackberry booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella#8217;s and Read#8217;s reports explain that the on Advances defendant answered that he drove from his house in Brockton to theory his son-in-law#8217;s, Crosby#8217;s, home in East Bridgewater. Crosby then drove the defendant#8217;s vehicle to the game.

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

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

A probation revocation is religion, 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 in Art revocation. The defendant#8217;s admission, however, of having driven the vehicle earlier in the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. In any event, assuming that the failure to television 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 Essay in Art actions of defense counsel in introducing the issue at the inception of the hearing, and in vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the defendant#8217;s principal concern was with the television then-pending operating under the influence charge. With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation.

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

Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in Essay on Advances the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for The Impact of Senior Leader Essay the purposes of the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and therefore should not have been considered; and Essay (c) the alleged admission was unreliable and compare religion insufficient to form the basis of the probation surrender, since it lacked corroborative evidence and was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant#8217;s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the basis of the violation. The record shows that the conversation reported by Coronella, in on Advances which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read#8217;s testimony at rosemary dobson analysis, the hearing supports this version of events.8. Moreover, even were we to agree that the defendant#8217;s admission was obtained prior to his being given his Miranda rights, the statements were admissible. Following the rationale established in Essay on Advances in Art United States v. Dobson Poems Analysis? Calandra, 414 U.S. 338, 94 S.Ct.

613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the Essay use of evidence obtained in of Senior violation of the Fourth Amendment, the in Art Supreme Judicial Court, in rosemary dobson poems Commonwealth v. Essay In Art? Vincente, 405 Mass. Religion? 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at Essay in Art, trial as having been obtained in violation of the defendant#8217;s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for television advertisement a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the defendant and Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the in Art influence, the poems exclusion at a probation revocation hearing of the defendant#8217;s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989).

See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness. Simon next argues that the statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendant#8217;s claim of intoxication, standing alone, is 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 Essay on Advances in Art the voluntariness of statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an affirmative finding on the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. Television Advertisement? 364, 366, 720 N.E.2d 834 (1999).

See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (#8220;special care is taken to Essay in Art review the issue of voluntariness where the defendant claims to have been under the influence of drugs or alcohol#8221;). Such special care with regard to Essay intoxication is necessary; the United States Supreme Court has noted, #8220;as interrogators have turned to on Advances in Art more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the `voluntariness#8217; calculus.#8221; Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. Goal Development Essay? 515, 93 L.Ed.2d 473 (1986). Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at Essay on Advances in Art, a probation revocation hearing, we find instructive the reasoning in the decisional law related to compare religion Fourth Amendment violations.

In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of Essay in Art police harassment, or at least police knowledge of the petitioner#8217;s probationary status. Chomsky Language? See United States v. On Advances In Art? Gravina, 906 F.Supp. Chomsky Acquisition Theory? 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. Compare United States v. Gravina, supra at 54, quoting from United States v. James, 893 F.Supp. On Advances? 649, 650-651 (E.D.Tex.1995) (#8220;an element of blackberry constancy should be present in the type of harassment necessary to invoke the exclusionary rule#8230;. [W]here harassment may be a singular act, at least some irregularity in the conduct of the Essay on Advances police officials must be present#8221;).

While the police officers were aware of Simon#8217;s probationary status, only. Information? two Federal jurisdictions exclude statements for Essay on Advances 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 Information of Homes driving under the influence, and the record shows that their inquiry was targeted to Essay in Art elicit evidence in The Impact of Senior Leader Development support of on Advances in Art a conviction on that offense, rather than for the purpose of eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (#8220;The Federal courts have concluded that, in most instances, a police officer is primarily interested in compare obtaining evidence with which to convict a defendant. Revocation of probation is generally only a minor consideration, and therefore the Essay risk that illegally obtained evidence might be excluded from such proceedings is Leader Goal, likely to have only a marginal additional deterrent effect on illegal police misconduct#8221;).

In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the #8220;voluntary#8221; waiver of the Essay on Advances personal right against self-incrimination protected by the Miranda warnings on will ferrell the one hand, and the due process-based #8220;voluntariness#8221; of a statement protected by the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. Similarly, the Supreme Court #8220;cautioned against expanding `currently applicable exclusionary rules,#8217;#8221; into an area where they could serve little purpose in the protection of constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. 515, quoting from Lego v. In Art? Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the compare religion exclusionary rule be applied in these circumstances. On Advances? #8220;In Federal law and in television advertisement most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.#8217; See Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. On Advances? Calandra, 414 U.S. Information & Importance Essay? 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).#8221; Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. #8220;`Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.#8217; Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669.

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

Simon finally argues that the statement, that he operated the vehicle from Essay, his home to Crosby#8217;s home that morning, is insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is rosemary analysis, hearsay, reported by one officer, and contradicted by other evidence in the hearing. Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the #8220;full panoply of constitutional protections,#8221; due process requires that probationers be afforded some protections upon an attempt to on Advances revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at Information & Importance of Homes, 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered. See id. at 113-117, 551 N.E.2d 1193. Even the right of confrontation may be denied if the #8220;hearing officer specifically finds good cause for not allowing confrontation.#8221; Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193.

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

470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at chomsky language acquisition theory, all to corroborate the admission. As there was corroboration in this instance, we need not reach the issue whether corroboration is in fact necessary for an admission in the context of a hearing on surrender. As to the claim that the hearsay was unreliable, we note only Essay on Advances, that Read testified that he was present when the defendant admitted to driving earlier in the day, and that he had made a note of it in advertisement his police report. Read was present at the hearing and subject to on Advances in Art cross-examination. The statement was an admission against interest made by the defendant to will ferrell blackberry 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. Essay? 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 advertisement reliable.

Order revoking probation affirmed. In Art? 1. See, e.g., Commonwealth v. Villalobos, 437 Mass. Acquisition Theory? 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced). 2. Essay On Advances? In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of Goal Development a guilty finding and the revocation of on Advances in Art straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). Leader Goal Development Essay? 3. We look to the testimony given by Officer Read at the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to Read#8217;s initial questions. Any variance is in Art, not material to religion our decision.

4. At the in Art conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby#8217;s statement. In his written findings, the judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the of Senior Leader Essay finding included #8220;Mashpee police reports#8221;; #8220;Statement of Kevin Crosby#8221;; #8220;Mashpee P.O. John Read#8221;; #8220;Breath test on D.#8221; Given the written finding that revocation was based on #8220;Operating motor vehicle while suspended,#8221; and the judge#8217;s unequivocal statement that he was not relying on Crosby#8217;s statement, we adopt the view that the revocation was based on the defendant#8217;s admission that he had been operating the vehicle earlier that day. Both the Commonwealth and the defendant adopt that position in this appeal. 5. With respect to the alleged violations, the notice stated in Essay full: #8220;You are hereby notified of the following alleged violation(s) of the probation order that was issued to dobson poems analysis you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. Essay In Art? under infl. # 0089CR00009B op. after susp. lic.#8221; 6. Dobson Poems? The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby#8217;s statement that the defendant was driving, there is ample additional circumstantial evidence to tie the defendant to the operation of the vehicle at the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Essay Commonwealth#8217;s arguments in this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for ferrell Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Coronella#8217;s report states in pertinent part: #8220;During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and Essay on Advances stated that he wanted to take the breath test. [The defendant] was given the test and the results were as follows#8230;. [The defendant] was again asked how he got to the #8230; game.

He stated that he drove from his house in Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.#8221; Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station. 9. The United States District Court for compare religion Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to in Art evidence seized in violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the target#8217;s probationary status, but not where a police officer is television, unaware of that status; and Essay on Advances (4) the Fourth Circuit #8220;stands alone#8221; in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and rosemary dobson cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed.

824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in in Art Commonwealth v. Olsen, 405 Mass. Of Senior Development? 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer#8217;s knowledge of a probationer#8217;s status would compel exclusion of evidence obtained. 11. Essay On Advances? Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to of Senior Essay Crosby#8217;s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to Crosby#8217;s. Any determination of the weight and credibility of Read#8217;s testimony was for the judge, and Essay in Art 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 advertisement manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests.

76 Mass.App.Ct. 908. Cheryl A. BAZINET. Appeals Court of Massachusetts. James M. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Essay On Advances? 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 compare an area adjacent to in Art the checkpoint for administration of field sobriety tests.

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

34, as amended, 442 Mass. Information & Importance? 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). Essay On Advances In Art? See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991).

The questions are these: ?1. Advertisement? 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 Essay in Art operator is theory, OUI, to further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of Essay in Art alcohol sufficient reasonable suspicion to further detain an operator for further testing? ?2. Is the Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. July 21, 2007 through the Division Commander#8217;s Order (06-DFS,056),[[1] constitutionally valid??

The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in & Importance Essay charge of a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the decision in Murphy requires an affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and Essay on Advances now requires, see Murphy, supra at ferrell blackberry, 320 n. 3, 910 N.E.2d 281, further screening after the Essay on Advances in Art initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the operator #8230; is committing #8230; an OUI violation.? In Murphy, the troop commander#8217;s order, like the troop commander#8217;s order in The Impact Development this case, stated that further screening after the initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.? Murphy, supra at 321, 910 N.E.2d 281. The court said that the Essay on Advances ?odor of alcohol? was one of the rosemary dobson ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for further screening and investigation. Id. at on Advances in Art, 320, 328, 910 N.E.2d 281.2 The court#8217;s judgment in that regard is consistent with judgments made by courts in other States that have considered similar questions.

See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist#8217;s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. Religion? No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by Essay in Art itself, can trigger reasonable suspicion of driving under the influence?). Turning to question two, the opinion in Murphy did not consider the Division Commander#8217;s Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to of Senior Leader Development detect drivers who are impaired by alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by in Art operational instructions contained in a letter from the compare troop commander to Essay the officer in will ferrell charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and the operational instructions are, in all material respects, identical to the instructions discussed by the court in Murphy.

As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional. Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to on Advances in Art all observed violations, thus reducing further the kind of blackberry discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989).

In light of the foregoing, the in Art answer to reported questions one and two is ?yes.? 1. This appears to be a typographical error. The Division Commander#8217;s Order included in the record appendix is television, numbered ?07-DFS-56.? 2. The court#8217;s complete list of ?clues of impaired operation? was ?the condition of the in Art eyes of the advertisement operator, the odor of alcohol, the speech of the operator, alcohol in plain sight in the vehicle, and Essay on Advances in Art other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Of Senior Leader Goal? Later in the opinion, the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of Essay alcohol? from that list. Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the rosemary analysis omission. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of Essay (1) operating a motor vehicle while under the chomsky acquisition influence of intoxicating liquor (OUI), G. L. c. In Art? 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. Development? L. c. 90, § 24(2)(a). Essay On Advances In Art? 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 chomsky language theory panel#8217;s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the Essay panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of language acquisition (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. On Advances? c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of analysis a motor vehicle, G. L. c. 90, § 24(2)(a). On the day following the Essay in Art rendition of the jury#8217;s verdicts, the television advertisement presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of OUI, fourth offense, G. L. Essay On Advances? c. 90, § 24(1)(a)(1), sixth par. On the same day, the chomsky language acquisition theory defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver#8217;s license for prior conviction of OUI, G. L. c. 90, § 23. Upon the convictions for Essay in Art OUI fourth, the judge sentenced the religion defendant to four and one-half to five years#8217; confinement at State prison; upon the conviction for on Advances operation after suspension or revocation by reason of compare religion prior OUI conviction, the judge imposed a sentence of two and one-half years#8217; confinement at the house of Essay in Art correction from and Information & Importance of Homes after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to 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 the determination of the Essay sentences.

For the following reasons, we reject the defendant#8217;s appellate contentions and affirm the convictions and compare the sentences. Factual background. The evidence permitted the jury to find the following facts. On Advances? 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 compare religion, 6:00 P. M., she left the Essay house in analysis order to on Advances purchase take-home food from a delicatessen in the city. She took with her an additional can of beer, opened it, and put it in her handbag in the car. The Impact Of Senior Leader Essay? At a major intersection in Lynn and after she had taken a drink from the open can, she made an unlawful turn across three lanes, up and over a median island, and across two more lanes, so as to drive up to in Art and against the front door of a restaurant (not the restaurant to television advertisement which she was headed for Essay on Advances in Art purchase of food). Will Ferrell? The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance.

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

He formed the opinion that she had been driving under the influence of compare religion alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the Essay in Art case. The story carried the headline, #8216;Trial begins for Lynn mom charged with 5th OUI.#8217; The article stated that she had incurred three #8216;drunken driving#8217; convictions during the 1990#8242;s and a fourth in 2004. The article stated also that she #8216;blew a.15 alcohol blood level when arrested#8217; for the current incident. Development Essay? At the in Art beginning of the third day of trial, all counsel and advertisement the judge discussed the appearance of the Essay on Advances in Art article. When the ferrell jury entered the courtroom, the judge addressed the following question to them. #8216;Has any member of the jury read, seen, heard or overheard anything from in Art, any source about any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in rosemary poems analysis any way as a fair and impartial juror? Nobody#8217;s raising their hand.#8217; He added a second question. #8216;Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is anyanything you#8217;ve heard at Essay on Advances in Art, all, even the tiniest thing. Okay, nobody is raising their hand. Okay.

All right, so we will resume with the trial.#8217; Defense counsel did not object to the judge#8217;s treatment of the poems analysis issue of exposure to prejudicial publicity by these questions. Later that day, after the close of the in Art evidence and in the course of final instructions to the jury, the judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in analysis the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the jury verdicts, the finding of the bench trial, and the submission of the plea of guilty to operating after suspension or revocation for in Art prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. #8216;This is a sad case. I understand that I have a limited amount of information about what happened and about the The Impact Goal Development Essay [d]efendant, but it#8217;s pretty obvious to me that, from what I have received, that the Essay on Advances [d]efendant Ms. King is probably a very nice person and she probablyit#8217;s not hard to see that she#8217;s probably had a difficult life; I am sensitive to these things. Compare Religion? But the sentence I#8217;m going to impose is necessary, in my view.#8217; The judge then specified the sentence for each offense. At the conclusion of his announcement of the respective sentences, he made the on Advances in Art following one-sentence statement. #8216;I assume it#8217;s obvious what my feelings are about why this sentence is required.#8217; The remark brought no objection. On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form.

In the Information & Importance of Homes appropriate space for explanation of the departure from the in Art guidelines, he wrote, #8216;Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.#8217; Newspaper article. On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. Will Ferrell? The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant#8217;s prior OUI convictions. Because the defendant lodged no objection to the judge#8217;s preventive or curative efforts at the time of trial, we review this argument under the on Advances standard of The Impact of Senior Leader substantial risk of a miscarriage of justice. We review the case as a whole and on Advances ask (1) whether an rosemary dobson poems error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel#8217;s failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judge#8217;s management of the issue.

The defendant relies upon the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for instances of discovery of potentially prejudicial publicity during the course of trial. #8216;If the judge finds that the Essay on Advances in Art material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on religion collectively, but if any juror indicates that he or she has seen or heard the on Advances in Art material, there must be individual questioning of that juror, outside of the compare presence of any other juror, to determine the extent of the juror#8217;s exposure to the material and its effects on the juror#8217;s ability to render an impartial verdict#8217; (emphasis supplied). The thrust of the defendant#8217;s argument here is Essay on Advances in Art, that the judge had a duty, not an option, to conduct individual voir dire questioning of the jurors.

As the governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the judge has no further duty to carry out 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#8217;s continuation into Leader Goal Development Essay, individual interrogation of jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to search for it during the course of a trial. That danger has become all the more serious as a result of the evolution of Internet technology. Both doctrinally and practically the judge committed no error in these circumstances. 1. Sentencing. The defendant argues that the judge#8217;s reference to #8216;feelings#8217; about the imposed sentences reveals a violation of the in Art standard of impartiality mandated for sentencing by The Impact case law, particularly the case of Commonwealth v. Essay? Mills, 436 Mass.

387, 399-402 (2002). That decision emphasizes, #8216;A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from that of impartial arbiter.#8217; Id. at 401. The defendant characterizes the advertisement reference to #8216;feelings#8217; as a forbidden indulgence of #8216;personal and private beliefs.#8217; The judge#8217;s fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in any of the decisions cited by the Mills discussion. We view the reference to #8216;feelings#8217; in the setting of the judge#8217;s entire remarks about sentencing. In that light, it reflects reasons and not emotion. He commented that he viewed the case as a #8216;sad#8217; one. Since it involved no personal injuries or casualty, his reference to in Art its #8216;sad#8217; character alluded to the fate of the defendant. He observed that she may well have had a hard life.

He observed also that he was #8216;sensitive#8217; to her circumstances. At the same time, he found her behavior over the decade and one-half covered by her four OUI convictions to constitute a serious threat to public safety. He justifiably viewed her record as #8216;egregious.#8217; She embodied a danger to the lives of innocent travelers and pedestrians on and near the roadways. His sentencing scheme removed that peril for the period of years imposed for religion confinement. The sentencing fell within the bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the defendant#8217;s argument is that the judge had a duty to make specific reference to the Lynn Item article in Essay on Advances in Art his collective question to the jury. The Jackson case creates no such duty.

Specific reference would raise the risk of juror research. The judge#8217;s choice created no error of law or abuse of advertisement discretion. Mass DUI OUI #8220;Not Public Way#8221; Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. 76 Mass.App.Ct. 830. Appeals Court of Essay Massachusetts, Argued Feb.

3, 2010. Decided June 1, 2010. Sharon Dehmand for the defendant. Television Advertisement? Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for in Art 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. Television? On appeal, he argues that the pier on which he was arrested was not a public way under the Essay in Art statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the acquisition defendant. We affirm. 1. On Advances? Facts. The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard. Rosemary Dobson? The pier is Essay in Art, surrounded on all sides by water and accessible by automobile only by way of will blackberry public streets.1 Those streets end at in Art, Terry Ring Way. As described by a police officer, ?Off of chomsky language theory Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.? Entry to the pier is then through a swinging gate.

Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to on Advances the pier stated that only theory, authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of him. This caught his attention because he understood from signage at the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were ?usually the Essay on Advances director#8217;s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant#8217;s car was on would had to compare religion have gone across the wooden boards into the section down on the pier; there#8217;s no motor vehicles at all, it#8217;s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there#8217;s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating.

He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and in Art blurry-eyed, and that he smelled of will blackberry alcohol. Spinetto attempted to dissuade the defendant from driving, but the defendant got back into the truck and Essay on Advances in Art attempted to leave the The Impact of Senior Development Essay scene. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the truck#8217;s doors and by closing the gates to on Advances in Art the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the chomsky theory defendant. Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and talking to the defendant, the police placed the defendant under arrest. 2. Public way. Essay On Advances? 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 language acquisition theory any way or in any place to which members of the public have access as invitees or licensees.? G.L. Essay On Advances? c. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. Ferrell? 90, ? 1. Essay On Advances? This element has been further interpreted by the Supreme Judicial Court to dobson poems require that the in Art ?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. Endicott, 17 Mass.App.Ct. Goal Essay? 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. Essay On Advances In Art? 545, 549, 672 N.E.2d 16 (1996). The Impact Leader Goal? In making that determination, we look to see if the ?physical circumstances of the on Advances way are such that members of the public may reasonably conclude that it is open for of Senior Leader Goal Development Essay travel#8230;.? Commonwealth v. Hart, 26 Mass.App.Ct.

235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?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. Essay? See Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Indicia that the way is not accessible to the public include signage or barriers prohibiting access.

See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is of great significance?). Television? Deeds are also relevant considerations. See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). Essay In Art? 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 streetlamps, a deed containing a covenant for the property ?to provide access and egress to of Senior Goal Development 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 in Art the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the blackberry pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to authorized vehicles. The Commonwealth#8217;s own testimony also supported the contention that only limited vehicular access was allowed on Essay on Advances the pier, although vehicles were allowed on Terry Ring Way leading to Leader Essay the pier. In sum, the status of the pier as a public way is a close question. Essay In Art? 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 chomsky language Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the drinking and driving occurred on the baseball field, which did not provide vehicular access to Essay on Advances the public.4. In the instant case, the presence of a gate and signage are strong indicators that restrictions on public vehicular access were in place. However, the gate blocking vehicular access to the pier was not locked and could be opened by Information & Importance the public, as it was by the defendant. On Advances? 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 dobson analysis the photographs included in the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the on Advances pole] that read: ?Private Property/Chomerics Employees and Information Essay Authorized Persons Only? ?). Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the road as one approache[d] the entrance? and physical circumstances did not suggest a public way). The deed also expressly provided for vehicular access to the public. The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in 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 Essay on Advances in Art the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. Compare Religion? The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the on Advances in Art pickup to the. pier.6 Also it was reasonable to television infer that the defendant was intoxicated while he was driving on those public roads before he arrived at Essay in Art, the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to advertisement urinate in public. Essay On Advances? Proof of operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct.

49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. The Impact Essay? 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 provide the necessary proof of all three elements of the offense: the public way, the Essay in Art driving, and the impairment. Blackberry? Moreover, the judge#8217;s instruction to the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and Essay on Advances maintained by some level of government is rosemary dobson, what we call a public way. This includes, for Essay on Advances 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.

First, trial counsel#8217;s failure to object to The Impact Leader Goal Development Essay various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the on Advances testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel#8217;s informed and strategic decision to elicit from the television defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the Essay overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an television otherwise available, substantial ground of defence.? Commonwealth v. Essay On Advances? Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Television Advertisement? Finally, the defendant#8217;s argument that the judge considered improper factors in sentencing is on Advances in Art, without merit. The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of language theory 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. Although the judge briefly mentioned Spinetto#8217;s community impact statement in her sentencing remarks, it is on Advances in Art, clear that the defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Information & Importance Of Homes? Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. On Advances? (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and the judge#8217;s proper instructions permitted the jury to find that the poems analysis defendant had driven under the Essay on Advances influence of alcohol on the public roads leading to rosemary poems analysis the pier. In Art? Ante at 835, 927 N.E.2d at Leader Essay, 500.

That analysis freed us from the on Advances need to resolve the ?close question? whether the pier constituted ?any way or #8230; any place to which the public has a right of access, or #8230; any way or #8230; any place to which members of the public have access as invitees or licensees#8230;.? G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of & Importance precedent restrictively construing the statutory terms ?way? and ?place.? As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and on Advances the need for Information & Importance examination of the on Advances in Art underlying case law.2. Significant facts. Rosemary Dobson Analysis? The language of the Essay on Advances statute relevant to our concern was last revised in 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon any way or in any place to which the public has a right of of Homes Essay access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle #8230; while. under the influence of Essay in Art intoxicating liquor #8230; shall be punished#8230;.? 3. The opinion of the court describes the location, the access roads, the gate, and signage related to dobson poems analysis the pier. Ante at 833-835, 927 N.E.2d at 499-501. Four important and on Advances independent circumstances of the use of the pier emerge as well from the evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to chomsky a terminal at the edge of the Essay in Art 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. & Importance Of Homes? races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and Essay endangered by the defendant#8217;s driving were pedestrians. Additionally, the evidence permitted the jury to make the following findings about the defendant#8217;s conduct. He drove his pickup truck at a high speed onto television advertisement the pier; got out and urinated onto one of the benches; reentered the truck and Essay on Advances in Art backed into another bench; and then backed up further so as to collide with a storage shed used by the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law.

A sensible and of Homes direct application of the words of the statute to the circumstances of the pier and the actions of the defendant would appear to in Art make him punishable. However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the conviction of the defendant, not on the basis of his extraordinary conduct on the pier, but rather on the basis of The Impact of Senior Leader Goal 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 Essay on Advances in Art law.? St.1906, c. Compare? 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on on Advances a ?way? stated that ?[t]he statute was passed for the protection of travellers on will ferrell highways,? and therefore presumably persons in motor vehicles. In Art? See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E. Will Blackberry? 829 (1926) (movement of car for several feet by mere shifting of in Art gear and without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of television travellers upon Essay on Advances in Art highways?); Commonwealth v. Clancy, 261 Mass.

345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon blackberry ways?). In 1928, the Legislature rewrote the Essay in Art entire provision. Its opening main clause now declared, ?Whoever upon poems analysis any way, or in Essay on Advances in Art any place to which the public has a right of access, operates a motor vehicle #8230; while under the influence of intoxicating liquor #8230; shall be punished #8230;? (emphasis supplied). G.L. c. 90, ? 24, as appearing in St.1928, c. 281. Thus the notion of statutory protection for highway travelers or motorists took hold in religion the version of the act predating any reference to operation in a ?place.?

Subsequent decisions seem never to have caught up with the Essay on Advances 1928 addition of the concept of a ?place? as the site of operating under the influence. Despite the added term, the court in Commonwealth v. The Impact Of Senior Leader Goal Essay? Paccia, 338 Mass. In Art? 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over it, even though the owner of the private way had permitted use of advertisement it by members of the public as business invitees or business licensees to a nearby restaurant and a market building. The court reasoned that the canon of strict construction of penal statutes required an explicit legislative statement expanding the place of Essay in Art 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 the meaning of ?under the influence?), the court in chomsky dicta repeated the language of the Essay on Advances in Art 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). In another it determined that the defendant#8217;s operation of his pickup truck on Leader Goal Essay a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the Essay on Advances owner#8217;s permission did not involve a ?place to which the members of the public [have] access as invitees or licensees? because the owner had never consented to such entry. Commonwealth v. Callahan, 405 Mass. Development Essay? 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the Essay on Advances in Art reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of chomsky acquisition penal legislation against the Commonwealth applied to its terms.

Id. at 205, 539 N.E.2d 533. ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to in Art address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid. In its last assessment of this portion of the act in 1990, the court held that the center field area of of Homes Essay 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 Essay on Advances right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field. Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the analysis 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. Essay? None of the cases appears to have addressed the applicability of the The Impact Leader Goal 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 Essay in Art the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by its language and ferrell contradicted by its safety purpose. The precise language of the Essay on Advances act is the first source of chomsky language theory insight into its meaning and legislative intent. See, e.g., Hoffman v. On Advances? Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. of the & Importance Trial Court, 446 Mass. Essay? 123, 124, 842 N.E.2d 926 (2006). Compare Religion? The language extends to impaired operation ?upon any way or in any place? accessible to members of the public as invitees or licensees.

The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of Essay access? and ?invitees and ferrell blackberry licensees? denotes the generality of the intended ?place.? The Legislature did not confine the roles of Essay on Advances in Art invitees or licensees to persons conveyed by acquisition motor vehicles. It. chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out on Advances in Art, that the act#8217;s penal character requires strict interpretation.

See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at language, 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute#8217;s meaning?); Commonwealth v. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). Essay On Advances In Art? If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the law#8217;s limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of lenity gives the television defendant the benefit of a plausible ambiguity. It ?does not mean that an available and on Advances sensible interpretation is to be rejected in of Homes favor of a fanciful or perverse one.? Commonwealth v. On Advances In Art? Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Compare? Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and on Advances in Art application in a discussion of the scope of the act.

One is that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. 90, ? 24G [ a ], against the defendant#8217;s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature#8217;s addition of the word ?place? in 1928 meant something more than a ?way.? Both the statutory definition of ?way,? G.L. c. 90, ? 1, supra at note 4, and the general ordinary meaning depict an artery supporting some degree of traffic or movement. By contrast, a ?place? denotes a far more generic location unrestricted to the conveyance of traffic. If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.?

Commonwealth v. Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and analysis 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 Essay on Advances highway travellers. Other standards of interpretation forbid courts to add language to the terms chosen by the Legislature. Commonwealth v. Blackberry? McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Essay in Art Legislature did not put there, either by inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the The Impact of Senior Leader Goal Development phrase ?by motor vehicle? to the Legislature#8217;s words ?any place to which the public has a right of access, #8230; or #8230; any place to which members of the public have access as invitees or licensees.? That narrowing addition undercuts the on Advances in Art legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result.

See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Information? Millican, 449 Mass. at 303-304, 867 N.E.2d 725. In Art? The application of the impaired driver statute for the protection of members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from The Impact Development, criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways. It excludes from the Essay in Art protection of the statute members of the public least expecting, and The Impact of Senior Goal Essay most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Essay On Advances? Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for protection against The Impact of Senior Leader Goal 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 on Advances a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the of Senior Goal Development statute. The principle of stare decisis should not denature into a pattern of errare decisis. Essay? Several processes are available to break the compare religion momentum of error. Within the in Art executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator#8217;s use of public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here.

Within the judiciary the Supreme Judicial Court could reconsider the rosemary poems present construction said by the court in on Advances in Art George to have evolved without discussion. Finally, and perhaps ideally, the Legislature could further amend the statute to extend its reach unmistakably to & Importance of Homes ?any place in which the in Art public has a right of blackberry access, or #8230; any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to drive to the Charlestown Pier. Essay? He then drove in traffic on public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to ?race up and rosemary dobson pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the Commonwealth#8217;s case on the public way question, we do not consider the defendant#8217;s testimony in Essay determining whether that motion should have been allowed. 3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of The Impact Essay law, a public way.?

Id. at 636, 550 N.E.2d 138. Essay On Advances In Art? 4. The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and overturned the car while trying to of Senior Essay 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. On Advances In Art? 5. We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the rosemary judge#8217;s instructions and the proof offered adequately presented the issue for the jury#8217;s consideration. 6. The passenger left the Essay in Art car soon after they were confronted at will ferrell blackberry, the pier. Essay In Art? 7. Compare? The Commonwealth chose not to Essay on Advances in Art inquire about the dobson analysis field sobriety test on cross-examination.

8. The judge explained that ?having weighed the Essay statutory language, having weighed the facts of the offense, and this defendant#8217;s prior record, having considered the chomsky acquisition 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 the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988).

Commonwealth v. Essay? 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. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlord#8217;s breach of covenants in the lease; and the subsequent decision of the of Homes Essay Supreme Judicial Court overruling that doctrine, Wesson v. Essay On Advances? Leone Enterprises, Inc., 437 Mass. 708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the compare religion extension or the on Advances in Art insertion of standards or rules to television advertisement cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. Essay On Advances In Art? 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 of Senior Leader Goal Development Essay, 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. On Advances? As discussed below, the Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. Will Ferrell? 90, ? 24(1)( a )(1), as appearing in St.1994, c. 25, ? 3, and by St.2003, c. 28, ? 1. 4. Essay In Art? In decisions addressing the Information of Homes meaning of in Art a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the The Impact Leader Goal Development Essay definition of that term by G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at Essay, 498-99, we have examined the will ferrell blackberry site where the suspect was driving under ?the usual indicia of on Advances 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 will, Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for conviction of operating under the Essay in Art influence under ? 24(1)( a )(1) dealt with a way on will ferrell blackberry both sides of which were business abutters and which was indisputably open for travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. On Advances In Art? Motor Vehicle, Operating under the influence, Operation.

Practice, Criminal, Required finding, Instructions to Information & Importance of Homes jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY. Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on in Art this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. Ferrell Blackberry? 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#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and Essay returned in the Superior Court Department on January 26, 2005.

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

1. Operation of the motor vehicle. A. Operation as matter of ferrell blackberry law. At trial, the on Advances Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the engine on. Compare Religion? There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the wheel. In Art? Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The defendant argues that the Leader Essay evidence of operation was insufficient as matter of law because putting a key into the ignition and Essay 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 Goal Development engine may be found to be #8220;operating#8221; the vehicle for purposes of Essay on Advances in Art G.L. c. 90, § 24, is one of first impression in Massachusetts. Acquisition? 3. To define #8220;operation#8221; we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24 (1928), which held that #8220;[a] person operates a motor vehicle within the meaning of G.L. Essay In Art? c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.#8221; 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of will operation). Essay On Advances? Under the Uski definition, turning the rosemary dobson poems key in the ignition to the #8220;on#8221; setting could be found to be part of on Advances in Art a sequence that would set the vehicle#8217;s engine in motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the compare Massachusetts OUI statute. The purpose of G.L. c. 90, § 24, is to #8220;protect[] the Essay on Advances in Art public from intoxicated drivers,#8221; Commonwealth v. Ginnetti, 400 Mass.

181, 184 (1987), by #8220;deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf. State v. Haight, 279 Conn. Information Of Homes Essay? 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (#8220;[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated#8230;#8221;). Even an intoxicated person who is sleeping behind the in Art wheel is dangerous because #8220;that person may awaken and decide to drive while still under the dobson analysis influence.#8221; State v. Kelton, 168 Vt. 629, 630 (1998). Essay? 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in the passenger#8217;s seat, turned the television ignition keyan act which the jury could have found to be the Essay on Advances first step in a sequence to set in television motion the motive power of the vehiclewas sufficient to permit the jury to conclude that he #8220;operated#8221; the motor vehicle. See also State v. Haight, 279 Conn. at 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will #8220;set in motion the motive power of the vehicle#8221;) (citation omitted). 7, 8. We are unpersuaded by the defendant#8217;s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to the #8220;on#8221; position could not constitute operation.

Specifically, the defendant argues that turning the key in the ignition to a position that does not start the Essay car would only draw power from the battery and compare religion thus neither starts the on Advances engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the analysis defendant is correct and that turning the key to the #8220;on#8221; position does not engage the engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at 183-184, the court was faced with the Essay question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. c. 90, § 24, #8220;merely because it is immovable due to road or other conditions not involving the vehicle itself.#8221; Id. at 184. Applying the acquisition theory Uski definition to the facts before it, the court concluded that #8220;the defendant#8230; operate[d] a motor vehicle by starting its engine or by making use of the Essay on Advances in Art power provided by its engine.#8221; Id. at 183-184. In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant#8217;s argument that the jury instructions were inappropriate. The judge#8217;s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant#8217;s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver#8217;s seat with a key turned in the ignition compelled a finding of operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11.

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

See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (#8220;Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI#8221;), citing Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to poems 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 defendant, upon being awakened by the police officer, told the officer that the on Advances in Art officer did not have the vehicle#8217;s keys. The defendant testified that, after he moved to the driver#8217;s seat and began eating his food, he did not remember what happened until the 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 the ignition. Moreover, the existence of language contradictory evidence does not require a finding of not guilty. See Commonwealth v. Pike, 430 Mass. 317, 323-324 (1999).

Second, the on Advances defendant points to the testimony of his friend that the friend left the of Homes defendant passed out in the passenger seat and on Advances threw the keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the of Homes Essay jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into the driver#8217;s seat, picked up the key and in Art put it in the ignition when he moved to the driver#8217;s seat. 2. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree. The prosecutor#8217;s argument disputing the ferrell defendant#8217;s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel#8217;s argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass.

397, 404 (1999). We also conclude that the prosecutor#8217;s statement that the defense witness#8217;s testimony corroborated the officers#8217; testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was #8220;improperly muzzled#8221; at 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 Essay in Art Gloucester the next day. The defendant, however, was permitted to elicit testimony from the defendant#8217;s friend that the dobson analysis defendant said he had to work early in the morning and planned to Essay sleep in the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorney#8217;s strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of prior convictions of driving under the influence. See Commonwealth v. The Impact? Finstein, 426 Mass. 200, 203-204 (1997). C. Essay? Prior to trial, the defendant moved to replace his attorney, and advertisement the judge denied the Essay motion. The record reflects that as soon as the judge became aware of a conflict between the defendant and chomsky language acquisition theory his counsel, the defendant was provided an opportunity to explain his reasons for Essay on Advances in Art wanting to remove his attorney.

The judge did not abuse his discretion in denying the defendant#8217;s motion where (1) this trial counsel was the defendant#8217;s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for a new trial on his behalf, but without the defendant#8217;s presence, the defendant#8217;s presence would not have affected the & Importance of Homes outcome of that motion for a new trial; and (4) the defendant merely complained of on Advances something that any lawyer who represented him #8220;who had any competence at all would do.#8221; See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the judge abused his discretion by refusing to language acquisition theory remove two jurors for cause. We disagree. With respect to each of the in Art complained-of jurors, the Information Essay judge dispelled any concerns about the juror#8217;s bias through follow-up questioning, in which the jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officer#8217;s testimony was challenged. A trial judge is afforded #8220;a large degree of discretion#8221; in the jury selection process. Essay? Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from will ferrell blackberry, Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). #8220;Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is manifest.#8221; Commonwealth v. Seabrooks, supra at 443. No such prejudice was manifest here. E. In Art? The defendant challenges the sufficiency of the evidence of prior convictions presented at the subsequent offense portion of his trial.

Reviewing the issue under the familiar standard of Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendant#8217;s contention is without merit. First, there was ample evidence that the television defendant was the person who had been convicted of similar offenses once in Essay on Advances in Art 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (#8220;[registry of language acquisition motor vehicles] records, which contained more particularized identifying information#8230;, also reflected the offenses and the fact that they were the defendant#8217;s#8221;). On Advances? See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. 368, 372 (2003). Second, otherwise admissible certified records of rosemary analysis 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#8217;s instructions to on Advances in Art 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. Television Advertisement? F. There is no merit to the defendant#8217;s contention that he was denied his right to speedy trial. On Advances In Art? Pursuant to advertisement Mass.R.Crim.P. Essay In Art? 36(b)(1)(C), 378 Mass.

910 (1979), #8220;a criminal defendant who is not brought to ferrell blackberry trial within one year of the in Art return day in the court in which the religion case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay.#8221; Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant#8217;s trial began on January 23, 2007, 686 days later. #8220;The delay may be excused by a showing that it falls within one of the #8216;[e]xcluded [p]eriods#8217; provided in Essay on Advances in Art rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.#8221; Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Of the 686 days between those two dates, the docket sheet and chomsky language documents filed in support or opposition to the defendant#8217;s motion to dismiss show that many days are excluded from the calculation. Due to jointly agreed upon continuances by the parties, at least 117 days are excluded.

15 See Barry v. 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. Essay? 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. Information & Importance Of Homes? 910 (1979). Finally, the defendant#8217;s motion to on Advances dismiss, which was filed on December 13, 2006, and decided on compare religion January 10, 2007, also tolled the Essay on Advances running of the rule 36 time for twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at 505 n. 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and The Impact trial, meaning that fewer than 365 days remain to count against the Commonwealth. Therefore, the defendant was tried within the time constraints of in Art rule 36(b), and the order denying the motion to dismiss is affirmed. 18. 1. Of Senior? General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. On Advances? 28, §§ 1, 2, provides in relevant part: #8220;Whoever, upon any way or in Information & Importance of Homes Essay any place to which the public has a right of access, or upon any way or in any place to which members of the Essay in Art public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chomsky language theory chapter ninety-four C, or the vapors of glue shall be punished#8230;. #8220;If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program#8230; because of a like offense three times preceding the date of the commission of the offense for Essay on Advances in Art which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years#8230;.#8221; 2. Quite correctly, the chomsky language defendant does not dispute that operation can occur even when the vehicle is #8220;standing still.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct.

317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. 566, 568 (1926). 3. If the evidence shows that a defendant was seated in the driver#8217;s seat with the engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the in Art meaning of the compare statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant #8220;seated in on Advances in Art the driver#8217;s seat with the engine running and a key in the ignition#8221;); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. 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 chomsky defendant turned on the motor or simply placed the key in the ignition. In Art? 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (#8220;The defendant#8217;s intention after occupying the driver#8217;s seat is not an element of the statutory crime#8221;).

6. Television Advertisement? See also State v. Essay In Art? Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (#8220;We believe that an intoxicated person seated behind the steering wheel of religion a motor vehicle is a threat to Essay on Advances in Art the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to Leader Development Essay be drawn that he placed himself behind the Essay wheel of the vehicle and could have at Information, any time started the automobile and driven away#8221;). 7. Cf. On Advances In Art? Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of acquisition theory operation similar to on Advances in Art the Uski definition in holding that the defendant did not operate the vehicle #8220;[b]ecause the advertisement presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment#8221; of the Essay vehicle); Propst v. Ferrell Blackberry? Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the position of the on Advances key in compare the ignition is Essay on Advances in Art, a factor that a trial court should consider but does not create a bright line rule). 8. Television? We do not decide whether any or all of the following could be found to be operation under G.L. c. 90, § 24: inserting a key in the ignition without turning it and without engaging the motor or the vehicle#8217;s power; using an electronic remote starting device to start the engine of the car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in the ignition to engage either the electricity or the motor before going to sleep in a seat other than the driver#8217;s seat. 9. In the absence of any evidence below regarding whether the in Art key, when turned in the ignition to the on position, engages the engine, we reach no conclusion on that mechanical issue. 10. The Impact Leader Development Essay? The relevant portion of the jury instructions is the following: #8220;The first element which the Commonwealth must prove is that the on Advances in Art defendant operates a motor vehicle.

The expression #8216;operation of a motor vehicle#8217; covers not only television advertisement, all the well known and easily recognize[d] things that drivers do, as they travel on Essay on Advances 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 chomsky any electrical agency which alone or in Essay on Advances sequence will set in motion the mode of dobson poems power of the vehicle is sufficient in law to constitute operation. In Art? A person operates a motor vehicle, within the rosemary poems meaning of the law, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the Essay on Advances in Art vehicle. The Commonwealth need not prove the television defendant#8217;s intention after occupying the driver#8217;s seat.#8221; 11. We also reject the defendant#8217;s argument that #8220;a stopped engine instruction#8221; was required because the engine was stopped, and the stop was not incidental to the operation of the vehicle. See Commonwealth v. Essay On Advances? Cavallaro, 25 Mass.App.Ct.

605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. Acquisition? c. 90, § 24, includes #8220;at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation#8221;). Such an instruction was inappropriate here where the Commonwealth#8217;s theory was that the defendant was operating the vehicle by putting the key in the ignition and turning it. This theory did not depend on on Advances any previous operation of the vehicle. 12.

The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and was #8220;highly intoxicated.#8221; Furthermore, the arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the Commonwealth failed to rosemary dobson poems analysis meet its burden by Essay on Advances not introducing sufficient evidence that the defendant#8217;s friend was not the person operating the vehicle. See Commonwealth v. Boothby, 64 Mass.App.Ct.

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

The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. 36(b)(2)(A)(iii). In Art? Due to a mutually agreed upon continuance, a change in counsel between the theory bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on March 24, 2006. On Advances? 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 Information & Importance excluded days to confirm compliance with the requirement for a speedy trial, we do not compile a complete list of Essay on Advances in Art all excluded days.

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

Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Ct. 644] A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and Essay in Art 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 Essay claims that (1) the trial judge improperly allowed the Commonwealth#8217;s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant#8217;s blood alcohol content and Essay erroneously instructed the jury on that evidence; and (3) calculated improprieties by & Importance Essay the prosecutor and extraneous influences upon the jury resulted in reversible error.

We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant#8217;s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in Essay on Advances in Art 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 religion negligent operation (in violation of G.L. c. 90, § 24G[a]).1 On July 25, 2005, a District.

Court judge allowed the Commonwealth#8217;s motion to amend the June 1 complaint to add an alternate theory of intoxication, a 0.08 percent #8220;per se#8221; violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges. The trial judge sentenced the defendant to two and one-half years in the house of correction on the motor vehicle homicide charge and a consecutive sentence of two years in the house of correction on the negligent operation charge. In Art? In December of 2006, the will blackberry defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion.

The allowance of in Art that motion is not at issue in this appeal.3. Background. The evidence at trial included the following. On November 27, 2003, at approximately 8:30 P.M., the television defendant#8217;s jeep and the victim#8217;s vehicle collided at an intersection in New Bedford. Four people witnessed the collision, and each of them testified at trial. According to the witnesses, the defendant#8217;s jeep went through a stop sign at a high rate of speed and struck the victim#8217;s vehicle.

A New Bedford police officer arriving at in Art, the scene after the accident saw the defendant pacing back and blackberry forth in an agitated manner. Essay? The officer spoke to the defendant and did not detect the odor of advertisement 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 in Art, multiple traumatic injuries. Paramedics took the defendant to the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash. She analyzed the damage to the vehicles and made numerous measurements of the crash scene. Based on her investigation, the expert concluded that the ferrell defendant#8217;s jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass. On Advances In Art? App.

Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the blackberry defendant was #8220;angry [and] agitated#8221; and his breath smelled of Essay on Advances alcoholic beverages. He told the officers that he had consumed #8220;a forty of OE,#8221; a forty-ounce bottle of Olde English brand beer. Both officers testified that the television advertisement defendant#8217;s demeanor changed when one of the officers notified him of the victim#8217;s death. While at the hospital, the defendant complained of pain in his chest. In response to in Art his complaint, hospital staff drew a blood sample from him and analyzed it. The doctor who had treated the Goal Development defendant testified that his blood serum sample had an Essay on Advances in Art alcohol reading of advertisement 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the Essay reading translated to a whole blood alcohol level of compare religion .15 to .16. Discussion. 1. Peremptory challenge.

Jury selection proceeded over two days. On the first day, the judge called juror to in Art 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. She stated, however, that she could be a fair and chomsky acquisition impartial juror. Essay On Advances In Art? The judge seated her conditionally in the jury box in advance of the parties#8217; challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror.

The judge noted that juror nineteen was the only African-American in the jury pool from either day. She asked the Commonwealth to explain the challenge. Will Blackberry? In response, the prosecutor gave two reasons: (1) the Essay on Advances in Art juror#8217;s speech and will ferrell mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and (2) the Essay on Advances prosecutor#8217;s discomfort caused by the juror#8217;s fixed stare at him during empanelment.5 The judge then determined that the prosecutor#8217;s explanation was not race-based. [75 Mass. App. Acquisition Theory? Ct. 647]

Defense counsel asked for the judge#8217;s impression of juror nineteen. The judge stated that the juror had #8220;somewhat of a halting speech pattern#8221; and was #8220;not incredibly articulate but #8230; not inarticulate either.#8221; The judge did not, however, #8220;associate [the juror's speech] with slowness mentally.#8221; The prosecutor explained that he believed that juror nineteen#8217;s mental acuity was similar to that of Essay on Advances another juror whom the judge had removed for cause. Language? The judge did not agree that juror nineteen suffered from Essay on Advances, a similar disability, but she allowed the will blackberry Commonwealth#8217;s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On Advances? On the following day, before the jury had entered the court room, the judge commented further on the Commonwealth#8217;s peremptory challenge of juror nineteen. She stated that, after the Information & Importance of Homes previous day#8217;s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and that she #8220;wanted to put some more #8230; findings on the record.#8221; She recounted that she had requested an explanation for the peremptory challenge, and she repeated the prosecutor#8217;s explanation. She noted also that the applicable case law requires #8220;a two prong analysis. One having to do with the adequacy of the Commonwealth#8217;s position once having been questioned about the Essay on Advances reason for Information of Homes the challenge and then the genuineness of Essay in Art that.#8221; Although the language acquisition theory prosecutor had not mentioned the criminal. [75 Mass. App. Ct. 648] history of juror nineteen#8217;s son when he had offered his explanation for the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the Essay on Advances in Art statement that #8220;I find #8230; the Commonwealth#8217;s explanation both adequate and Information of Homes Essay genuine, which is why I allowed the challenges to stand.#8221; Article 12 of the Declaration of Rights of the Essay on Advances in Art Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race.

See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). #8220;[W]e begin with the presumption that a peremptory challenge is proper.#8221; Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct. 202, 172 L.Ed.2d 161 (2008). Rosemary Poems? However, one may rebut that presumption through proof #8220;that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.#8221; Commonwealth v. Soares, 377 Mass.

461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the Essay on Advances in Art challenge. See Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). When #8220;the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an rosemary poems implicit finding that the prima facie case of discrimination has been made.#8221; Id. at 463 n. 5, 788 N.E.2d 968. Essay On Advances? Once the prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which #8220;pertain[s] to the individual qualities of the prospective juror and not to that juror#8217;s group association.#8221; Commonwealth v. Soares, supra at compare religion, 491, 387 N.E.2d 499. If the proponent#8217;s. [75 Mass.

App. Ct. 649] explanation seems superficial, the judge. In Art? should also allow rebuttal from the adverse party. Leader Goal Essay? See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). On Advances? The judge must then #8220;make an chomsky acquisition theory independent evaluation of the [proponent's] reasons and #8230; determine specifically whether the explanation was bona fide or a pretext.#8221; Ibid. #8220;In other words, the Essay on Advances in Art judge must decide whether the explanation is both `adequate#8217; and `genuine.#8217;#8221; Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. Advertisement? 422, 428, 765 N.E.2d 725 (2002). #8220;[I]t is imperative that the record explicitly contain the judge#8217;s separate findings as to both adequacy and genuineness and, if necessary, an explanation of those findings.#8221; Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968.

See Commonwealth v. Benoit, 452 Mass. 212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the Essay question of the will blackberry propriety of the peremptory challenge. She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to in Art be #8220;slow#8221; and because she had stared at him in a discomforting manner. The judge received defense counsel#8217;s opposing response. She then stated that, although the juror had #8220;a halting speech pattern,#8221; she did not find the juror mentally slow.

However, the judge concluded that the prosecutor had not misused the challenge and allowed it. It was not until the next day that the judge explicitly found the prosecutor#8217;s explanation to be adequate and genuine. The judge#8217;s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by the line of television advertisement cases culminating in Commonwealth v. Benoit, supra. As in on Advances in Art Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor#8217;s explanation of the peremptory challenge.

See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor#8217;s peremptory challenge where judge. [75 Mass. Rosemary? App. Essay On Advances In Art? Ct. 650] requested explanation and then allowed challenge but #8220;did not find that the prosecutor had met her burden of establishing an television advertisement adequate, race-neutral explanation that was the genuine reason for the challenge#8221;); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant#8217;s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for peremptory challenge). In sum, the record contains references to three possible grounds for disqualification of the Essay on Advances juror: her staring at language theory, the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by Essay on Advances the same district attorney#8217;s office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. She introduced, a day later, the rosemary dobson poems experience of the son, a potentially serious ground but one never invoked by the prosecutor in support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the specific, clear findings upon adequacy and genuineness required by the cases to sustain the peremptory challenge. In particular, the judge did not find either of the prosecution#8217;s grounds adequate, i.e., #8220;personal to Essay in Art the juror and not based on religion the juror#8217;s group affiliation#8221; and #8220;related to the particular case being tried,#8221; however genuine or bona fide the offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is demanding.

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

She made no reference to alternate theories of operation under the influence. During the trial, the on Advances Commonwealth introduced evidence of the defendant#8217;s blood alcohol content but offered no expert testimony to rosemary dobson analysis explain the relationship between blood alcohol content and impaired operation. During the on Advances in Art charge conference, the Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: #8220;The law says that if the percentage of alcohol by weight in rosemary poems analysis the defendant#8217;s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at the time.#8221; For reasons discussed below, the in Art instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor#8217;s reference to it in his summation, or the of Homes judge#8217;s erroneous instruction. In 2003, the Legislature amended both G.L. On Advances? c. 90, § 24G, the motor vehicle homicide statute, and G.L. Compare Religion? c. 90, § 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of intoxication. St.2003, c. 28, §§ 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had #8220;a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater.#8221; G.L. Essay? c. 90, § 24G(a). Prior to the amendments, the poems analysis statutes allowed the permissible inference of intoxication when the Essay on Advances in Art defendant had a blood alcohol content of television advertisement .08 percent or greater.

Commonwealth v. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and on Advances in Art replaced it with a conclusive inference. See Commonwealth v. Hubert, 71 Mass.App.Ct. Chomsky Language? 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. On Advances? [75 Mass. App. Ct.

652] absence of & Importance expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: #8220;If #8230; the Commonwealth were to proceed only on a theory of impaired operation [instead of both a per se theory and on Advances an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to guess at The Impact Goal, its meaning.#8221; Ibid. As for trials where the Commonwealth relies on Essay both theories, the decision states further: #8220;[I]f the per se and impaired ability theories of criminal liability are charged in the alternative #8230; and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the test level to the degree of intoxication or impairment of the defendant.

In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor.#8221; Id. at 817, 864 N.E.2d 498. Dobson Poems? We presume that this language applies to the results of blood tests in addition to the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in in Art Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant#8217;s objection, admission of the television results required reversal. Id. at 664, 885 N.E.2d 164. In Art? In this case, the complaint charged both theories. The judge admitted evidence of the defendant#8217;s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the television advertisement jury on the per se theory. Essay On Advances? Furthermore, the Information judge erroneously instructed the jury on Essay in Art the permissible inference of intoxication eliminated by the 2003 amendments. See. Leader Goal Development Essay? [75 Mass. App.

Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. In Art? 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 advertisement the alleged errors, we review for the substantial risk of Essay on Advances in Art a miscarriage of justice. Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the compare verdict of guilt. Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Essay In Art? Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. Ferrell? 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth#8217;s evidence of intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and on Advances hit the victim#8217;s vehicle.

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

Here, as in Hubert, police testimony about the defendant#8217;s signs of intoxication differed. Essay? 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. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at 13, 712 N.E.2d 575. [75 Mass. App. Ct.

654] Conclusion.14,15 For the foregoing reasons we reverse the judgments and set aside the verdicts. The case is remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G.L. c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by negligent operation (in violation of G.L. c. Rosemary Poems Analysis? 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 on Advances two theories to prove operation under the influence: (1) operation #8220;with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the advertisement influence of intoxicating liquor.#8221; G.L. Essay On Advances In Art? c. 90, § 24G(a), as amended through St.2003, c. 28, § 21. See Commonwealth v. Rosemary Dobson Analysis? Colturi, 448 Mass.

809, 810, 864 N.E.2d 498 (2007); Commonwealth v. In Art? Hubert, 71 Mass.App.Ct. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. 1009, 902 N.E.2d 368 (2009). Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory. 3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth#8217;s motion to file a late notice of television advertisement appeal from the grant of the defendant#8217;s motion for relief from an unlawful sentence. The Commonwealth#8217;s appeal has not entered in this court. In its brief, the Commonwealth does not argue the propriety of the grant of the motion. Essay On Advances In Art? Therefore, we do not address it.

4. She opined also that the defendant#8217;s jeep had struck a vehicle parked on chomsky language acquisition theory the side of the road prior to Essay the collision with the victim#8217;s vehicle. 5. In its entirety, the prosecutor#8217;s explanation was: #8220;Judge, she appears slow to me at side-bar in of Senior Goal Development her speech and Essay on Advances mannerisms and rosemary dobson 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 Essay in Art, the side-bar; and it bothered me. But I do find that she#8217;s slow at side-bar speaking with her, in her speech; and I#8217;m concerned that this is of Homes Essay, a three or four day trial, a lot of witnesses; and I#8217;m concerned about on Advances in Art, her ability to The Impact Leader Goal Development try the evidence.#8221; 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on juror fourteen because the juror was not a member of on Advances a protected class. However, he supplied an explanation, and the judge allowed the advertisement challenge. In Art? 7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass.

460, 788 N.E.2d 968 (2003). However, the television advertisement transcript reflects that the judge stated that she #8220;look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of a [discrete] group#8230;.#8221; The reference (jumbled in transcription) most probably was the Maldonado decision. 8. The judge#8217;s reference to the criminal history of juror nineteen#8217;s son was as follows: #8220;I would also add that it was known to all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to on Advances in Art recall me, just this past fall that was prosecuted by the district attorney#8217;s office and apparently came up#8230;. [A]nd I don#8217;t remember the case per se but she spoke about it. It apparently just happened last fall.#8221; The judge went on to say that she understood the Commonwealth#8217;s concern #8220;whether she could perform in a truly objective manner#8221; because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by the prosecutor.

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

1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). Essay In Art? 10. That explanation had little chance of success. #8220;Challenges based on subjective data such as a juror#8217;s looks or gestures, or a party#8217;s `gut#8217; feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.#8221; Commonwealth v. Rosemary Dobson Analysis? Maldonado, 439 Mass. at 465, 788 N.E.2d 968. On Advances? 11. This reasoning does not interfere with the authority of of Senior Goal a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of Essay in Art either the Commonwealth or a defendant. 12. The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the Hubert decision in theory May 2008.

Therefore the judge and trial counsel did not have the benefit of those interpretations of the in Art 2003 amendments. 13. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and The Impact Goal Essay preserved the Essay on Advances in Art issue so that the standard of review was the presence of prejudicial error. Here we have reviewed the issue under the television advertisement less demanding standard of substantial risk and found the on Advances in Art error again sufficiently serious to Development require reversal. 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal.

The extraneous influences were (1) a shout by the victim#8217;s mother at the defendant as the jurors left the courtroom on the first day of on Advances in Art trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the jury#8217;s view of the site. The claim of calculated impropriety by television the prosecutor arises from testimony of on Advances in Art two police officers that they told the defendant that he had #8220;killed#8221; the victim. The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the judge#8217;s decision on a motion in limine. No evidence supports the view that the mother#8217;s outburst or the accident site memorial overcame the judge#8217;s instructions for a verdict based strictly on the evidence. Poems? The claim related to the officers#8217; use of the word #8220;killed#8221; fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the Essay on Advances in Art 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. Of Senior Leader Development? Massachusetts, ___ U.S. Essay? ___, 129 S.Ct. Language? 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal.

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

Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. Essay? ? 1 The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the court imposed on Gerald W. Gilman following his conviction at 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 rosemary dobson poems analysis court imposed an illegal sentence when it sentenced Gilman to less than the Essay in Art minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that #8220;all penalties and punishments shall be proportioned to the offense.#8221; Me. Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the. Television? court erred in on Advances in Art admitting a certified record from the Secretary of State declaring him to television be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Essay its progeny. ? 3 The State#8217;s appeal is accompanied by the written approval of the Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b). Because we agree with the television advertisement State#8217;s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman#8217;s constitutional rights, we vacate only the sentence and remand for resentencing. Essay On Advances? ? 4 The facts are not in dispute.

On April 11, 2007, Gerald Gilman was stopped for speeding in ferrell blackberry the Town of New Sharon, three miles from in Art, his home. He had not been drinking. Gilman, a member of the local Elks Club, was returning from the club#8217;s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for an operating under the & Importance of Homes influence (OUI) conviction. In fact, Gilman#8217;s license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the Secretary of State, admitted at trial over Gilman#8217;s objection, showed that he had been given proper notice of the Essay on Advances 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). Section 2557-A, which was enacted as part of what is compare religion, popularly known as #8220;Tina#8217;s Law,#8221; provides that in Essay that circumstance #8220;the minimum fine . . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court.#8221; 29-A M.R.S. ? 2557-A(2)(D); P.L.

2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to dismiss the allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for OUI. The Superior Court (Jabar, J.) denied the motion. ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the chomsky acquisition theory revocation, and Essay on Advances (3) his driving record included three OUI convictions within the dobson poems analysis previous ten years. Essay In Art? The court (Murphy, J.) overruled the objection, denied Gilman#8217;s motion for a judgment of acquittal, and took the ultimate issue of whether the State had met its burden of proof under advisement. Gilman then filed a written. argument asking the court to revisit its earlier rejection of his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Information of Homes Essay Maine Constitution. The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the court#8217;s reasoning on the Confrontation Clause issue and again denied Gilman#8217;s equal protection claim.

On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by Essay on Advances in Art the parties. Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that #8220;Tina#8217;s Law#8221; increased the will ferrell blackberry penalties if he were to Essay on Advances in Art be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman#8217;s due process claim and theory denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from in Art, four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the will blackberry United States Department of Veterans Affairs, Gilman#8217;s sister, and Gilman himself. At the on Advances conclusion of the hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Gilman, as well as the manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of decency. Will? The Defendant has carried his burden in Essay on Advances in Art his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Gilman. ? 11 At a final hearing on December 11, the court conducted the statutorily required sentencing analysis on advertisement the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009). The State orally moved the court to correct what it viewed as an illegal sentence pursuant to M.R.Crim. On Advances? 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 Maine citizens. Section 9 sets limits on the State#8217;s power to punish: #8220;Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.#8221; Me. Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at least two years. 29-A M.R.S. ? 2557-A(2)(D). Accordingly, the court#8217;s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the will blackberry circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilman#8217;s individual circumstances, the mandatory sentence was disproportionate to in Art his offense, and therefore the theory statute is unconstitutional in this instance.5 Gilman#8217;s burden is Essay, significant, as #8220;one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the television Legislature are presumed constitutional.#8221; State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of #8220;strong and on Advances convincing reasons.#8221; Town of Frye Island v. Blackberry? State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to in Art the offender, as well as the offense, has been an open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the individual or because of the manner in which the sentence is ferrell, carried out, there was not enough information in on Advances in Art this case for the trial court to reach that conclusion.

State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to answer the question left open in rosemary dobson 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 in Art, convicted, (2) the two-year mandatory sentence prescribed by religion statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. Essay On Advances In Art? must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant#8217;s particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that #8220;punishments shall be proportioned to the offense.#8221; 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 the language used.

Because the same principles employed in the construction of statutory language hold true in the construction of a constitutional provision, we apply the plain language of the constitutional provision if the language is unambiguous. Voorhees v. Ferrell Blackberry? Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning. See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that #8220;it is a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings#8221; (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant#8217;s conduct.7 Only in Worthley did we refer to in Art the characteristics of the individual offender, and then only to rosemary poems point out on Advances, that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of religion our State Constitution, it is instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on Essay on Advances consideration of a particular offense or category of offender,8 but has not. required an individualized determination that a mandatory punishment is Information, appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S.

957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (#8220;We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.#8221;). Regarding the in Art Federal Constitution, the First Circuit Court of Appeals noted: There is rosemary, no constitutional right, in Essay on Advances in Art non-capital cases, to individualized sentencing. Legislatures are free to provide for mandatory sentences for particular offenses.. . . The mere fact that a sentence is mandatory and severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Language Acquisition? 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#8217;s discretion when it determines it is appropriate to do so, subject only to the constitutional prohibition against on Advances in Art punishment disproportionate to a given offense. The construction urged by Gilman would go far beyond what the ferrell blackberry language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature#8217;s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant#8217;s individual circumstances in Essay on Advances finding that a mandatory sentence is acquisition, disproportionate as applied to that person is simply reinstatement by judicial declaration of a sentencing court#8217;s ordinary discretion to weigh mitigating factors, and in Art then impose a maximum sentence that is television advertisement, lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). A court would then always have the Essay on Advances in Art sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on the ground that the mandatory sentence is disproportionate as applied in a particular case.

We do not read article I, section 9 to render the will ferrell Legislature#8217;s authority to enact mandatory sentences a nullity.10. ? 21 Because we hold that the clause, #8220;all penalties and punishments shall be proportioned to the offense,#8221; means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court #8220;always has the power and duty to Essay on Advances in Art uphold the State and Federal Constitutions,#8221; and will #8220;protect the individual from an unconstitutional invasion of his rights by the legislative . Religion? . . branch of Essay in Art government.#8221; Dep#8217;t of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as #8220;the voice of the sovereign people#8221; in the area of crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of legislative concern. It is of Senior Essay, not the office of the judiciary to interpose constitutional limitations where none need be found. Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the Essay on Advances sentence and the evil to be avoided might then be a cruelty of constitutional dimensions.

It seems to us that the interest of the legislature is chomsky language, paramount in the field of penology and the public safety. The legislature defines the contours of the crime itself, and in Art sets the will limits for punishment. . . On Advances In Art? . Poems Analysis? The underlying structure of the on Advances in Art penal system is statutory; the coherence of the system is to be found in legislative direction. State v. The Impact Of Senior Leader Development? King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (#8220;The power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment.#8221; (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and on Advances unusual as whether it #8220;is greatly disproportionate. . . and whether it offends prevailing notions of decency,#8221; Worthley, 2003 ME 14, ? 6, 815 A.2d at advertisement, 376; whether it #8220;shocks the conscience of the Essay on Advances in Art public, or our own respective or collective sense of fairness,#8221; State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is of Senior Leader, #8220;inhuman or barbarous,#8221; State v. In Art? Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is #8220;the voice of the sovereign people,#8221; King, 330 A.2d at 127, and thus expresses the people#8217;s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the collective conscience of the people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of language acquisition government assumes that the judgment of the Essay Legislature is the collective judgment of the religion people. ? 24 Gilman was convicted of Essay on Advances a Class C crime, punishable by a maximum of religion five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for Essay his conduct of two years, or forty percent of the maximum. 29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. & Importance Of Homes Essay? that they are willing to endanger others by Essay in Art operating a motor vehicle while impaired, from continuing to drive under any circumstances. A mandated sentence for & Importance Essay that conduct on the lower end of the in Art zero-to-five-years scale is not the rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. C. 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 operating after revocation because of his prior OUI convictions.

He acknowledges that in order to television advertisement reach the result he seeks, we would be required to overrule our decision in State v. Essay In Art? Chapin, where the same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992). Language Acquisition? ? 26 In Chapin, we concluded that the Essay in Art danger created by drunk drivers was #8220;certainly strong enough#8221; to justify the imposition of poems a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to on Advances in Art an enhanced sentence for The Impact of Senior Goal Essay operating after revocation remains intact. ? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the Essay on Advances in Art State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of chomsky acquisition 29-A M.R.S. ? 2557-A. Essay On Advances In Art? See P.L. 2005, ch.

606, ? A-11 (effective Aug. 23, 2006). ? 28 In Stade, we held that a defendant#8217;s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant#8217;s detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and Gilman is presumed to know what the law is.

See Houghton v. Ferrell? Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Essay In Art? Contrary to Gilman#8217;s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to of Homes break the law. Moreover, the law in effect at in Art, the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12. E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the dobson analysis 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 Essay in Art revocation, and that he had three OUI convictions within the preceding ten years.

As. & Importance? with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because #8220;the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.#8221; 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). In Art? ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court#8217;s decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the admission of a chemist#8217;s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although #8220;documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. Dobson Poems Analysis? . Essay In Art? . that is not the rosemary analysis case if the regularly conducted business activity is the production of evidence for use at on Advances, trial.#8221; Id. at poems, 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and Essay in Art concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the Leader Development Essay result here and consequently Gilman#8217;s argument fails. Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided: D. In Art? A person is guilty of a Class C crime if the person commits the crime of Information of Homes Essay operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years.

The minimum fine for a Class C crime under this paragraph is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case. P.L. Essay? 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions.

In any event, those protections are coextensive. See Conlogue v. Leader Goal Development? Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases). 3 The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)). 4 The Rule provides: #8220;On motion of the . . . attorney for the state . . . made within one year after a sentence is on Advances in Art, imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner.#8221; M.R.Crim. P. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for theory his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further.

6 Although the in Art Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and compare cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related. See Kennedy v. On Advances In Art? Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (#8220;The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . The Eighth Amendment#8217;s protection . . . flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense.#8221; (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (#8220;In analyzing whether a sentence is cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to the offense and whether it offends prevailing notions of decency.#8221;); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (#8220;A mandatory sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of chomsky language acquisition decency#8221;); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (#8220;The interpretation of `cruel or unusual punishment#8217; also is informed by the requirement of proportionality.#8221;). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for Essay in Art OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Will Ferrell? Frye, 390 A.2d 520, 521 (Me. Essay On Advances? 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. Television? 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in particular case irrelevant); c.f. State v. In Art? Alexander, 257 A.2d 778, 783 (Me.

1969) (holding five-day sentence imposed by court in its discretion for contemptuous #8220;reprehensible conduct#8221; not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for television advertisement 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. Essay In Art? 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 rosemary poems life for stealing three golf clubs under #8220;three strikes#8221; law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for Essay in Art mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of chomsky theory life without parole for possessing 672 grams of Essay on Advances 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 The Impact Goal Development Essay, a maximum sentence that may be higher or lower than the on Advances basic sentence, and finally determines whether any of the maximum sentence should be suspended in arriving at a final sentence. 17-A M.R.S. Advertisement? ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Governor the equitable power to #8220;grant reprieves, commutations and in Art pardons#8221; in individual cases. Me. Const. art. V, pt. 1, ? 11.

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

Gautier#8217;s conviction for being a felon in possession of a firearm pursuant to television 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. Essay In Art? Criminal No. 06cr0036-NG. Chomsky Acquisition Theory? United States District Court, D. Massachusetts. In Art? December 23, 2008.

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

2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Leader Goal Development? Whether the in Art 1998 Juvenile Offenses Were Committed on Different. 2. Whether the Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and will blackberry ammunition in the pocket of defendant Eddie Gautier (#8220;Gautier#8221;) one night in Roxbury. The offense stemmed from a night of on Advances in Art drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by religion 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 Essay 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 Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (#8220;ACCA#8221;). See § 924(e) (applying the penalty to defendants with at language theory, least three previous convictions for violent felonies committed on Essay on Advances in Art separate occasions).

I disagree. In passing the ACCA, #8220;Congress focused its efforts on career offenders— those who commit a large number of analysis fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to persons.#8221; Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. On Advances In Art? 2143, 109 L.Ed.2d 607 (1990). Gautier#8217;s criminal history consists of of Senior Leader Essay 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 Essay on Advances resisting. After two rounds of & Importance briefing and two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the statute. First, his resisting arrest conviction does not constitute a #8220;violent felony#8221; within the Essay on Advances in Art meaning of the ACCA. Second, and in the alternative, court records were ambiguous on chomsky acquisition theory the question of whether his 1998 offenses were #8220;committed on occasions different from one another#8221; as the statute requires. As a result, Gautier lacks the Essay requisite three predicate offenses and the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months#8217; incarceration, in effect the Guideline felon in possession sentence, and three years#8217; supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for that sentence.

On the night of 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 television advertisement their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group. One of Gautier#8217;s friends, Salome Cabrera, peered into in Art, the vehicle and made movements toward his waistband. The officers exited the car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted #8220;get the burner#8221; (slang for gun), a comment Gautier claimed he did not hear, and poems the police responded by drawing their weapons on the group. On Advances? They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier#8217;s jacket pocket. Dobson Poems Analysis? An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and Essay indicted on February 15, 2006, on one count of felon in possession of a firearm and one count of felon in possession of ammunition, both pursuant to television 18 U.S.C. § 922(g)(1). Subsequent to his arrest, he agreed to speak to Essay federal agents and advertisement police investigators, admitted to possessing the on Advances gun, and divulged where it had come from.

Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for Gautier sought a pre-plea Pre Sentence Report (#8220;PSR#8221;). Information & Importance Essay? When the pre-plea PSR concluded that an ACCA enhancement was required, the defendant felt obliged to go to Essay in Art trial. Television Advertisement? At trial, he fully admitted that he possessed a firearm and Essay that he had a prior felony conviction. His defense was that he had picked up the The Impact Leader Goal Development Essay gun and held it momentarily, to keep it from a group of younger, intoxicated friends in a dangerous area of Boston.

The jury rejected his claim, convicting him of both counts on Essay on Advances in Art 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 government to religion brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant#8217;s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties#8217; submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well. Gautier#8217;s conviction for Essay being a felon in advertisement 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. In Art? That statute provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from religion, one another, such person shall be fined under this title and imprisoned not less than fifteen years#8230;. 18 U.S.C. § 924(e)(1). Gautier#8217;s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier#8217;s conviction for Essay in Art resisting arrest may not be a #8220;violent felony#8221; under the ACCA. Second, the government may have difficulty establishing, on dobson the basis of source material deemed appropriate by in Art the Supreme Court, that the 1998 offenses were #8220;committed on occasions different from one another.#8221; A. Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass.

Gen. Laws Ch. 268, § 32B Is a Violent Felony. The ACCA defines #8220;violent felony#8221; as any crime punishable for a term exceeding one year that #8220;(i) has as an Information & Importance Essay element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is Essay, burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.#8221; 18 U.S.C. § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to advertisement the statutory definition of the prior offense and not to the facts underlying the conviction. On Advances? See Taylor, 495 U.S. at 600, 602, 110 S.Ct.

2143. Television Advertisement? Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in on Advances in Art the sentencing proceeding, not what he actually did. United States v. Language? Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in Essay in Art a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on dobson poems analysis which the Essay in Art predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge #8220;may not hold a minitrial on the particular facts underlying the prior offense,#8221; see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may #8220;peek beneath the coverlet#8221; of the formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). Information Of Homes? 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 in Art, how far that #8220;peek#8221; can go. #8220;Not very far, is the answer.#8221; United States v. Of Senior Goal Essay? Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct. Essay In Art? 2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the The Impact Leader Goal Essay verdict. On Advances? When a defendant#8217;s conviction resulted from television, a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at sentencing, and any comparable judicial record.

See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by the defendant. See Dueno, 171 F.3d at 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Essay on Advances Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of Gautier#8217;s 2002 plea to the charge establishes that the plea was to the violent version of the felony. Under the Massachusetts statute, a person is guilty of the offense if he knowingly prevents or attempts to prevent an officer from effecting an arrest by #8220;(1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of & Importance of Homes Essay causing bodily injury to Essay on Advances such police officer or another.#8221; Mass.

Gen. Chomsky? Laws ch. On Advances? 268, § 32B(a). The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it #8220;has as an element the use, attempted use, or threatened use of religion physical force against the person of another.#8221; 18 U.S.C. § 924(e)(2)(B)(i); see Gov#8217;t Sent. Mem.

3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier#8217;s colloquy, no plea agreement, and no other record indicating which type of resisting arrest Gautier admitted. While the PSR reviewed the police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to any #8220;peek#8221; at Essay on Advances, the underlying facts not comprised by the plea colloquy.

Accordingly, as in Shepard, the criminal complaint to of Senior Goal 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 on Advances in Art, no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and chomsky language acquisition theory as the. statute is structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. 1. Whether the Crime Defined by Prong (2) of Essay in Art § 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 of Homes Essay first definition laid out in the ACCA. That is, the language #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; Mass Gen. Laws. ch. On Advances? 268, § 32B(a), does not explicitly #8220;ha[ve] as an The Impact of Senior Leader Goal Development element the Essay use, attempted use, or threatened use of physical force against rosemary dobson poems analysis the person of another,#8221; 18 U.S.C. On Advances? § 924(e)(2)(B)(i). Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)#8217;s specification of resistance by of Homes #8220;other means,#8221; suggests that Prong (2) does not involve such an element by implication, either. 2. Essay On Advances? Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii) If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for compare the armed career criminal mandatory minimum, it must do so under the second definition provided by the ACCA. Since resisting arrest is obviously not one of the enumerated 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 Essay in Art 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 #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; in the language of the Massachusetts statute, Mass. Gen. Laws. ch. 268, § 32B, #8220;involves conduct that presents a serious potential risk of television advertisement physical injury to another,#8221; in the language of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the Essay on Advances question seems to answer itself, but the Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the residual clause. In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for language acquisition determining whether a conviction is a #8220;violent felony#8221; under the residual provision of § 924(e)(2)(B)(ii). Where the offense in question is not one of those enumerated in the statute, a court must determine not only (1) whether that offense #8220;involves conduct that presents a serious risk of physical injury to another,#8221; but also (2) whether the crime is #8220;roughly similar, in kind as well as in degree of risk posed, to the#8221; enumerated offenses. Id. at 1585.

The latter step is critical here. Essay? It requires a court to compare religion decide whether the offense in question typically involves #8220;purposeful, violent, and in Art aggressive behavior#8221;—the defining feature of the enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and its underlying purpose. Will? As to in Art text, the court noted that the Leader Development Essay presence of the enumerated offenses of burglary, arson, extortion and crimes involving explosives #8220;indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of Essay on Advances physical injury to another.#8217;#8221; Id. Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the examples.

As to history, the dobson analysis Court noted that in 1986 #8220;Congress rejected a broad proposal that would have covered every [such] offense.#8221; Id. at 1586. Finally, the Court noted that this interpretation served the ACCA#8217;s purpose of #8220;punish[ing] only on Advances, a particular subset of offender, namely career criminals.#8221; Id. at 1588: The listed crimes all typically involve purposeful, #8220;violent,#8221; and #8220;aggressive#8221; conduct#8230;. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim#8230;. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels #8220;armed career criminals.#8221; Id. at 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that #8220;presents a serious potential risk of Information & Importance of Homes Essay physical injury to another.#8221; Id. at 1584. Even so, it held under the second step of the analysis that a conviction for driving under the Essay influence (#8220;DUI#8221;) falls outside the scope of the residual clause because #8220;[i]t is simply too unlike the compare provision#8217;s listed examples for us to believe that Congress intended the provision to Essay on Advances cover it.#8221; Id. at 1584. Television? Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze #8220;every conceivable factual offense covered by a statute,#8221; but rather should consider #8220;the ordinary case#8221; of the offense. James, 127 S.Ct. at 1597. In the words of the First Circuit, I must evaluate the degree of risk posed by #8220;the mine-run of conduct that falls within the heartland of the statute.#8221; United States v. Essay? De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of a firearm is dobson poems analysis, not a violent felony under the in Art ACCA because risk of physical harm does not #8220;often accompany[] the rosemary dobson poems analysis conduct that normally constitutes#8221; the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the Essay in Art district court#8217;s understanding that it had to consider #8220;what#8217;s the typical, usual type of conduct#8221; constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence #8220;if and only if a serious potential risk of of Senior Leader Goal Development physical injury to another is a `normal, usual, or customary concomitant#8217; of the predicate offense#8221;); Winter, 22 F.3d at 20 (#8220;A categorical approach is not concerned with testing either the outer limits of statutory language or the myriad of Essay in Art possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of conduct that the statute purports to proscribe.#8221;). To determine the The Impact of Senior Development mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute.

In Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant#8217;s stiffening his arms and pulling one away for a second to avoid being handcuffed constituted resisting arrest by on Advances in Art a #8220;means which creates a substantial risk of causing bodily injury#8221; to the officers involved. Id. at 144-45, 741 N.E.2d 25. In Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition.

Commonwealth v. Grant, 71 Mass. App.Ct. 205, 210 n. 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of will ferrell force, the mine-run of conduct criminalized by Prong (2) involves a lesser version of #8220;active, physical refusal to submit to the authority of the arresting officers#8221;: paradigmatically, the stiffening of one#8217;s arms to resist handcuffing. Maylott, 65 Mass.App. Essay In Art? Ct. at 469, 841 N.E.2d 717.7.

Under the first prong of the Begay analysis, I must determine whether the television Prong (2) definition of resisting arrest #8220;presents a serious potential risk of physical injury to another.#8221; Stiffening one#8217;s arms to prevent handcuffing, the Essay in Art usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at television advertisement, least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the test. See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a #8220;violent felony#8221; for ACCA purposes) (#8220;While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the statute also charges behavior which would arguably not cause serious personal injury.#8221;). In Grandison, however, the Essay Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one#8217;s arm free, is #8220;[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.#8221; 433 Mass. at 145, 741 N.E.2d 25.

Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the compare resisting arrest statute presents a serious potential risk of injury to in Art another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is & Importance of Homes Essay, not #8220;roughly similar, in kind as well as in degree of risk posed, to the#8221; enumerated offenses. Begay, 128 S.Ct. at 1585. First, looking to the degree of risk: Even if the Grandison court is correct that stiffening one#8217;s arms and pulling away present a serious risk of harm to another, the degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of Essay on Advances in Art violence due to #8220;the possibility of a face-to-face confrontation between the burglar and a third party #8230; who comes to will ferrell investigate.#8221; James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the Essay on Advances in Art #8220;powder keg#8221; rationale). The element of surprise that spooks a burglar into television advertisement, personal violence is not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of one#8217;s arms than that it will result from a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. Second, looking to the #8220;in kind#8221; test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to in Art determine whether the offense involves #8220;purposeful, violent, and aggressive behavior.#8221; In Begay, the Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the dobson poems enumerated offenses. In Art? 128 S.Ct. at 1586-87 (#8220;[S]tatutes that forbid driving under the influence #8230; criminaliz[e] conduct in Goal Essay respect to which the offender need not have had any criminal intent at all.#8221;); see also United States v. Essay On Advances In Art? Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is The Impact of Senior Leader Development Essay, not a crime of violence because it is not intentional). Essay In Art? But as the First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall #8220;neither within the safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI #8230;), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.#8221; Id. at 7 (citation omitted). Prong (2) resistance is such a crime.

The First Circuit recently explained that #8220;all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to qualify as a `violent felony#8217; under ACCA.#8221; United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics. Chomsky? It explained: The Supreme Court #8230; use[d] #8220;purposeful#8221; interchangeably with #8220;intentional.#8221; [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is common sense that a DUI is not violent or aggressive in Essay on Advances in Art 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 #8220;tending toward or exhibiting aggression,#8221; which in turn is television advertisement, defined as #8220;a forceful action or procedure (as an unprovoked attack) esp. On Advances In Art? when intended to dominate or master.#8221; Merriam-Webster#8217;s Collegiate Dictionary 24 (11th ed. 2003). Violence may be defined as #8220;marked by extreme force or sudden intense activity.#8221; Id. at 58. Applying these definitions, the television court held that a conviction under a Wisconsin statute for in Art homicide by negligent operation of a motor vehicle was not a #8220;crime of violence#8221; under the career offender sentencing guidelines.10 Id. at 59. While the offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to be similar #8220;in kind#8221; to the enumerated offenses.

Id. A similar conclusion obtains here. To be sure, the Prong (2) form of resisting arrest is Leader Development, purposeful in that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to Essay on Advances expose others to risk of injury). It is differently purposeful, however, from the interstate transport of a minor for prostitution, which the Leader First Circuit held in Williams constituted a #8220;crime of on Advances violence#8221; under the career offender provision of the sentencing guidelines. 529 F.3d at 7-8. A defendant who prostitutes minors #8220;is aware of the risks that the prostituted minor will face#8221; and the risk of harm is #8220;easily foreseen by the defendant,#8221; id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses. Religion? See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary #8220;one of the `most damaging crimes to society#8217; because it involves #8216;invasion of Essay in Art [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and ferrell valued possessions#8217;#8221; (quoting H.R.Rep.

No. 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is on Advances, not characterized by the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by the court#8217;s definition of violence. See Herrick, 545 F.3d at 60. Nor does it resemble those offenses previously held by the First Circuit and dobson poems analysis the district courts in its jurisdiction to constitute violent felonies or crimes of on Advances in Art violence under the residual clause. See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and 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. Leader Development Essay? United States, 2004 WL 1571643 (D.Me. Apr.

30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old). And those cases predated Begay, when the Essay in Art standard for finding an offense to be a #8220;violent felony#8221; was easier to compare satisfy. Essay In Art? In light of the difference in aggression and chomsky violence between resisting arrest and on Advances in Art the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the #8220;`way or manner#8217; in which it produces#8221; risk of injury. Begay, 128 S.Ct. at 1586. Ferrell? To be sure, some courts—including within this district—have found that resisting arrest is an in Art ACCA predicate, but all of these cases predate Begay.11 Begay. #8220;charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act.#8221; Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government#8217;s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a #8220;crime of The Impact of Senior Leader Goal Development Essay violence#8221; under the Essay on Advances career offender guidelines. United States v. Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. 24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. Dobson Poems Analysis? § 922(g)).

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

Id. at *2. In light of the Supreme Court#8217;s pronouncement in Begay, then, I find that the Prong (2) version of resisting arrest is not a #8220;violent felony#8221; under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of one#8217;s arms, not the application of advertisement force to another. Even assuming that such conduct creates a serious potential risk of Essay in Art physical injury, it certainly does not resemble the will blackberry enumerated offenses either in degree of risk or in kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest. Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Gautier has at most two statutory 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#8217;s resisting arrest conviction is not a violent felony is enough to Essay in Art preclude the application of the ACCA enhancement. In the alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not #8220;committed on occasions different from rosemary dobson poems, one another#8221; as required to constitute independent predicate offenses.12 18 U.S.C. § 924(e)(1). The First Circuit has held that #8220;the `occasions#8217; inquiry requires a case-by-case examination of the totality of the circumstances.#8221; United States v. On Advances In Art? Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the #8220;identity of the victim; the type of crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the defendant#8217;s conduct; and/or the apparent motive for the crimes.#8221; Id. As one would expect from Congress#8217; use of the word #8220;occasion,#8221; the First Circuit has focused on the element of time. The Stearns court summarized that the statute distinguishes between, on the one hand, #8220;a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,#8217; viz., a period (however brief) which is devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,#8221; and on the other, #8220;a time lapse which does not mark the endpoint of the will ferrell blackberry first crime, but merely the natural consequence of Essay on Advances a continuous course of extended criminal conduct.#8221;13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on compare different occasions); see also United States v. Ramirez, No. CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me.

Dec. 21, 2007) (two robberies committed over on Advances 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 Information consecutive days); United States v. Mollo, No. 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on Essay in Art different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of religion different drugstores on consecutive days occurred on Essay in Art different occasions for the purposes of the rosemary dobson 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#8217;s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a #8220;categorical approach#8221; to Essay determining whether a prior conviction qualifies as a #8220;violent felony#8221; and thus predicate offense under the ACCA. Chomsky Theory? Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct.

2143, 109 L.Ed.2d 607 (1990). In the case of a guilty plea, the Court has limited district courts to #8220;the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the Essay on Advances in Art factual basis for the plea was confirmed by compare the defendant, or to some comparable judicial record of this information.#8221; Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The issue I confront here is Essay on Advances, whether this same source restriction applies to my consideration of whether two offenses were #8220;committed on rosemary dobson poems occasions different from one another.#8221; 18 U.S.C. Essay In Art? § 924(e)(1). & Importance? The First Circuit has never ruled on this issue. In a pre-Shepard case, the in Art court #8220;express[ed] no opinion#8221; on Information & Importance of Homes the lower court#8217;s citation of Taylor for the proposition #8220;that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.#8221; Stearns, 387 F.3d at in Art, 107. Religion? In that case, the defendant sought an Essay on Advances evidentiary hearing to will develop his argument that two of his predicate offenses should be counted as occurring on on Advances one occasion. The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the dobson defendant accepted the on Advances judge#8217;s ruling without objection, the First Circuit held he could not raise the issue on The Impact of Senior Leader Development Essay appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the Essay First Circuit again declined to resolve the advertisement issue. The defendant argued it was error for the district court to use facts gleaned from police reports and described in Essay on Advances in Art the PSR to find that two drug offenses disposed of on the same day were in fact #8220;committed on occasions different from rosemary dobson poems, one another.#8221; Id. at on Advances in Art, 38.

The court of appeals opted not to address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA. Id. at 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. Chomsky Language Theory? The Fourth Circuit held in United States v. Essay On Advances? Thompson, 421 F.3d 278 (4th Cir.2005), that the #8220;ACCA#8217;s use of the term `occasion#8217; requires recourse only to religion data normally found in conclusive judicial records, such as the date and location of an offense, upon which Taylor and Shepard say we may rely.#8221; Id. at 286 (upholding trial judge#8217;s reliance on the PSR to find that three burglaries occurred on separate occasions where that information was derived from Shepard-approved sources such as indictments and where defendant never objected to Essay on Advances the details in the PSR); see also United States v. Williams, 223 Fed.Appx. 280, 283 (4th Cir. 2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the court could not establish on the basis of Shepard-approved material that the Leader Goal Development predicate offenses were committed on different occasions. Id. at 279; see also United States v. On Advances In Art? Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant#8217;s sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and will blackberry remanded when it is unclear whether the sentencing court limited itself to Shepard sources in in Art determining whether the defendant#8217;s prior crimes were committed on different occasions.

See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005). Several district courts have come to the same conclusion. See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at Information & Importance of Homes, *2 (E.D.N.C. Oct. 16, 2008) (limiting the occasions inquiry to facts available in Essay on Advances Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. Ferrell Blackberry? June 26, 2007) (accepting the applicability of Shepard and Essay on Advances holding that the trial court #8220;properly reviewed the charging documents to determine that the advertisement offenses occurred on Essay in Art three separate occasions#8221;). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: #8220;All of our opinions on this issue have involved consideration of the specific facts underlying the prior convictions.

Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the predicate offenses.#8221; United States v. Thomas, 211 F.3d 316, 318 n. Chomsky? 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on Essay on Advances in Art separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. Rosemary Dobson Poems Analysis? 3 (7th Cir.1994) (holding #8220;[a]s a practical matter#8221; that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is Essay on Advances in Art, #8220;unsuited to a categorical approach,#8221; 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#8217;s use of the PSR to determine that defendant had three predicates from different occasions for the ACCA). I find that the former approach is more faithful to the Supreme Court#8217;s rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA. Of Senior Leader Goal Development Essay? As I explained in my remand opinion in Shepard, the in Art Supreme Court#8217;s categorical approach #8220;caution[s] the judge against becoming embroiled in a `daunting#8217; factual inquiry about what had actually happened at will, the time of the state offense.#8221; United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the Essay on Advances defendant did not go to trial is #8220;what did the defendant plead to in the state court?#8221; Id. at 17.

Where a defendant has not been found guilty by a jury, it is only fair to punish him for will ferrell blackberry the prior conduct that he actually admits, either by pleading to on Advances the facts alleged or failing to object to them at sentencing.14. Of Homes Essay? In light of the Supreme Court#8217;s caution in on Advances in Art this area and the judgment of the will blackberry courts of appeals, I find that I am limited to #8220;the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented#8221; in determining whether the defendants prior offenses were committed #8220;on occasions different from one another.#8221; Id. at 16. 3. 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 Essay in Art Gautier#8217;s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from advertisement, those cases. And no additional underlying facts were incorporated into the PSR and Essay in Art 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#8217;s and will blackberry prosecutor#8217;s dispositional requests, several things are evident from the face of the indictments.

In Suffolk Superior Court case no. 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against a victim named #8220;F.L.#8221; In Suffolk Superior Court case no. 98-10177, the 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 on Advances in Art battery with a dangerous weapon (water bottle) against one #8220;E.M.#8221; Both indictments alleged that he committed each offense on January 8, 1998. The indictments indicate that on compare religion January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to Essay on Advances steal E.M.#8217;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. Religion? Crucially, specific as they are, the charging documents do not reveal the Essay in Art location of the dobson crimes, the time interval between the offenses, or the Essay on Advances in Art continuity of the analysis conduct.

It is therefore not #8220;possible to discern the point at which the first offense is in Art, completed and the second offense begins.#8221; United States v. Chomsky Language Acquisition? Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against F.L. and Essay on Advances those against E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses. Compare Religion? See, e.g., United States v. Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while #8220;the three qualifying offenses must be temporally distinct,#8221; separate indictments are not required); United States v. Essay In Art? Howard, 918 F.2d 1529, 1538 (11th Cir.

1990). The Impact Goal Development? As such, courts have found that the existence of separate indictments is not dispositive evidence that the Essay in Art crimes alleged therein were committed on different occasions. See, e.g., United States v. Compare? Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for on Advances offenses all committed #8220;on or before November 30#8243; did not establish that the of Homes offenses occurred on #8220;occasions different from one another#8221; for the purpose of the Essay on Advances ACCA); cf. Television Advertisement? United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 2005) (holding that Shepard#8217;s source restriction governs determinations of whether prior crimes were #8220;related#8221; under the Sentencing Guidelines criminal history provisions, then ruling that the existence of in Art separate indictments did not mean they were unrelated). This conclusion applies with the same force to language acquisition theory the instant case. Prosecutors have wide discretion as to Essay on Advances in Art the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth #8220;may#8221; charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautier#8217;s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced #8220;a period #8230; devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,#8221; Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies #8220;on occasions different from ferrell, one another.#8221; 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 Essay in Art mandatory minimum does not apply to Gautier.15. IV. Leader Goal Development Essay? THE SENTENCE. A. Essay In Art? The Guidelines Computation. I accept the presentence report computation of the Guidelines to this extent: the base offense level is The Impact of Senior Leader Essay, 24 under U.S.S.G. § 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of Essay on Advances responsibility under § # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. I consider this issue in The Impact Goal connection with the 3553(a) factors (see below). Essay? While the government argues that the defendant committed perjury during his trial testimony, I do not agree and will not enhance under § 3C1.1. I also agree that Gautier#8217;s criminal history is & Importance of Homes Essay, category IV under § 4A1.1(d) and Essay on Advances (e). The Guidelines range, then, is 63-78 months. B. Compare? 18 U.S.C. § 3553(a) Factors.

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

I found Gautier contrite at his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in on Advances his life. Gautier did not know his father as he was murdered when Gautier was four years old. Acquisition? His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautier#8217;s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to on Advances in Art live with his paternal grandmother because of his discipline problems. He stayed there until age 16 when he returned to Leader Goal Development Essay Massachusetts. DYS records reveal that at age 16 Gautier witnessed a good friend being stabbed in Essay on Advances the chest and cradled his friend as he died. After this incident another good friend. Religion? died of complications relating to pneumonia.

Soon thereafter, he was committed to DYS for on Advances a number of offenses. & Importance Of Homes? He was released on parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier. On Advances In Art? The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and compare 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 Advances in Art, future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more. I have required Probation to devise a recommended plan for him, both as a recommendation for the Bureau of Prisons during the period of his incarceration and as a template for his supervised release afterwards. Studies suggest the will significance on recidivism of on Advances 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 television advertisement speak at high schools or to in Art other young men identified by Probation as #8220;at risk.#8221; I believe that a sentence of 57 months is appropriate here for the following reasons. Television Advertisement? It marks the in Art low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the The Impact Development Essay Guidelines#8217; values with those of § 3553(a). 1. The ballistics report observed that #8220;a portion of the trigger guard is broken off, the ejector rod collar is out of place, the ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the on Advances cylinder hand is not making contact with the cylinder, and neither the trigger nor the hammer can be drawn back to religion the firing position. There is rust on Essay on Advances in Art 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 return this weapon to a state in which it can be discharged.#8221; Boston Police Ballistic Unit Case Notes, Def.#8217;s Sent. Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on language acquisition theory the same day in in Art 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (#8220;PSR#8221;) ¶¶ 35-40. Essay? 3. On Advances In Art? Gautier made incriminating statements during the booking procedure, including #8220;You got me with the burner, I#8217;m gonna take a plea and do a year#8221; and #8220;That#8217;s a separate charge? Of course it#8217;s gonna have bullets in it, it#8217;s a gun.#8221; He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were #8220;burglaries#8221; under the rosemary dobson analysis ACCA.

The First Circuit reversed, holding that police reports could be considered if they #8220;constituted sufficiently reliable evidence of the government and the defendant#8217;s shared belief that the defendant was pleading guilty#8221; to Essay on Advances in Art 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 defendant plead to television advertisement in state court, and that the police reports did not provide reliable evidence on Essay that central question. United States v. Ferrell? Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the on Advances police reports could be considered and instructing me to religion apply to Essay on Advances in Art ACCA mandatory minimum. United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by defendant, in determining whether a defendant had pleaded to a violent felony. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct.

1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word #8220;some#8221; for the word #8220;any#8221; in #8220;any other means.#8221; This discrepancy is of no consequence in this case. Dobson Analysis? 6. In Art? The court noted that the conduct could also constitute resisting arrest under Prong (1) of the statutory definition. Id. at 719. 7. The government describes these as #8220;marginal or unusual examples of the crime,#8221; Gov#8217;t Sent.

Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in a case presenting the advertisement question of Essay whether failure to report to prison is a violent felony under the ACCA. Chambers v. Will Blackberry? United States, No. 06-11206, 2008 WL 4892841 (U.S. Nov. Essay On Advances? 10, 2008). This case presents the Court with an opportunity to reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the & Importance of Homes defendant into custody. The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that #8220;it is an embarrassment to Essay in Art the law when judges make decisions about The Impact Leader Development, consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences.#8221; United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against an arresting officer.

In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. The First Circuit has repeatedly held that #8220;[g]iven the Essay on Advances in Art similarity between the ACCA#8217;s definition of `violent felony#8217; and the definition of `crime of violence#8217; contained in the pertinent guideline provision, #8230; authority interpreting one phrase is generally persuasive when interpreting the chomsky language acquisition theory other.#8221; Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. Essay? 3. 11. In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for resisting arrest was a prerequisite #8220;crime of violence#8221; under the career offender guideline, U.S.S.G. § 4B1.1. He confessed #8220;hesitation#8221; based on #8220;the uncertain impact of the Supreme Court#8217;s recent decision in Shepard#8221; and the fact that the resisting arrest statute #8220;allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.#8217;#8221; Id. at 310. Television? 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 Essay on Advances defendant#8217;s motion to exclude his resisting arrest conviction as a predicate offense for career offender status.

In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for compare religion it. On Advances In Art? (Almenas is now on appeal at the First Circuit. See Almenas v. United States, No. 06-2513. Because the parties in that case have urged the 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. Will? ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. On Advances? Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because #8220;[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physically injury to chomsky language acquisition the officer and others.#8221; Id. at on Advances in Art, 455. Because the court made no attempt to will ferrell blackberry identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here. Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a #8220;crime of on Advances in Art violence#8221; under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the possibility of a violent incident. See id. at 1055. Compare? 12. The government urged me to Essay on Advances consider this alternative holding, even though it had not fully briefed it, in order to avoid addressing this issue on a remand, in television advertisement the event of resentencing.

13. This view accords with the guidance provided to trial judges in Essay on Advances in Art other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because #8220;it is possible to discern the point at which the first offense is completed and of Senior Leader Development the second offense begins#8221;); United States v. Essay On Advances? Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctor#8217;s offices 200 yards apart occurred on different occasions, because defendant #8220;made a conscious decision#8221; to commit another crime after completing the blackberry first). 14. The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would #8230; make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v.

New Jersey, 530 U.S. In Art? 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 language acquisition State, and in Art they guarantee a jury#8217;s finding of any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct.

1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, #8220;the disputed fact here #8230; is too far removed from the conclusive significance of chomsky acquisition a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to in Art resolve the dispute.#8221; Id. 15. In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of his January 8, 1998 criminal episodes does not qualify as a #8220;violent felony.#8221; The argument proceeds in will blackberry several steps. First, an on Advances offense is not a #8220;violent felony#8221; unless it is #8220;punishable by imprisonment for will blackberry a term exceeding one year,#8221; 18 U.S.C. § 924(e)(2)(B), and a crime is Essay on Advances, not punishable by imprisonment for television a term exceeding one year if it has been #8220;set aside#8221; under state law, § 921(a)(20). In Massachusetts, a youthful offender#8217;s conviction is #8220;set aside#8221; when he is discharged from Department of Youth Services (#8220;DYS#8221;) custody. Essay On Advances? See Mass.

Gen. Laws ch. 120, § 21. Gautier notes that for one of the two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is not absolute in refusing to count convictions that have been set aside. Compare Religion? It clearly states that such a conviction cannot serve as a predicate violent felony #8220;unless such pardon, expungement, or restoration of civil rights expressly provides that the in Art person may not ship, transport, possession, or receive firearms.#8221; § 921(a)(20). Where a defendant#8217;s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this #8220;unless clause#8221; is read to of Homes Essay include restrictions applied by state statutory law.

See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Essay On Advances In Art? Here, Gautier#8217;s discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch. 120 § 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from 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 chomsky language theory § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a #8220;conditional plea,#8221; pleading guilty while preserving his legal arguments. For all intents and purposes, that is Essay in Art, what his trial accomplished.

Gautier admitted he was a felon and admitted that he possessed the gun. He attempted to explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel#8217;s advice and the motivation for the trying the poems analysis case. 17. Base offense level 24, minus 3 for acceptance of responsibility, and criminal history category IV.

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cmu resume Scurit sociale : loi de financement 2014. Assemble nationale - 1 re lecture. La Commission saisie au fond a nomm MM. On Advances! Grard Bapt rapporteur (Recettes et quilibre gnral) le 5 juin 2013, Christian Paul rapporteur (Assurance maladie) le 5 juin 2013, Mme Martine Pinville rapporteur (Secteur mdico-social) le 5 juin 2013, MM. Information & Importance Of Homes! Michel Issindou rapporteur (Assurance vieillesse) le 5 juin 2013, Laurent Marcangeli rapporteur (Accidents du travail - maladies professionnelles) le 5 juin 2013 et Mme Marie-Franoise Clergeau rapporteur (Famille) le 5 juin 2013. Examen du texte au cours de la runion du 15 octobre 2013 17 heures. Examen du texte au cours de la runion du 15 octobre 2013 21 heures. Examen du texte au cours de la runion du 16 octobre 2013 9 heures. Examen du texte au cours de la runion du 16 octobre 2013 16 heures 30. Rapport n° 1470 dpos le 17 octobre 2013 : Tome I de M. On Advances In Art! Grard Bapt (Recettes et quilibre gnral) - recettes et quilibre gnral (mis en ligne le 18 octobre 2013 22 heures 45)

Tome II de M. Acquisition Theory! Christian Paul (Assurance maladie) - assurance maladie (mis en ligne le 19 octobre 2013 18 heures) Tome III de Mme Martine Pinville (Secteur mdico-social) - mdico-social (mis en ligne le 19 octobre 2013 16 heures 33) Tome IV de M. Essay On Advances In Art! Michel Issindou (Assurance vieillesse) - assurance vieillesse (mis en ligne le 18 octobre 2013 18 heures 15) Tome V de M. Acquisition! Laurent Marcangeli (Accidents du travail - maladies professionnelles) - accidents du travail - maladies professionnelles (mis en ligne le 19 octobre 2013 17 heures 48) Tome VI de Mme Marie-Franoise Clergeau (Famille) - famille (mis en ligne le 19 octobre 2013 15 heures 35) Tome VII de MM. On Advances In Art! Grard Bapt (Recettes et quilibre gnral), Christian Paul (Assurance maladie), Mme Martine Pinville (Secteur mdico-social), MM. Of Homes! Michel Issindou (Assurance vieillesse), Laurent Marcangeli (Accidents du travail - maladies professionnelles) et Mme Marie-Franoise Clergeau (Famille) - tableau comparatif (mis en ligne le 18 octobre 2013 15 heures 30) La Commission saisie pour avis a nomm Mme Valrie Rabault rapporteur pour avis le 11 juin 2013. Scrutin public n° 0678 sur l'ensemble du projet de loi de financement de la scurit sociale pour 2014 au cours de la 1 re sance du mardi 29 octobre 2013. Snat - 1 re lecture.

Projet de loi de financement de la scurit sociale, adopt par l'Assemble nationale, pour 2014, n° 117, dpos le 5 novembre 2013. et renvoy la commission des affaires sociales. La commission des finances s'est saisie pour avis. La Commission saisie au fond a nomm MM. Essay On Advances In Art! Yves Daudigny rapporteur le 3 juillet 2013, Georges Labaze rapporteur le 3 juillet 2013, Mmes Isabelle Pasquet rapporteure le 3 juillet 2013, Christiane Demonts rapporteure le 3 juillet 2013 et M. Compare! Jean-Pierre Godefroy rapporteur le 3 juillet 2013. Rapport n° 126 dpos le 6 novembre 2013 : Tome I de M. Essay On Advances In Art! Yves Daudigny - Equilibres financiers gnraux. Tome VI de M. Leader Essay! Jean-Pierre Godefroy - Accidents du travail et maladies professionnelles. La Commission saisie pour avis a nomm M. On Advances In Art! Jean-Pierre Caffet rapporteur pour avis le 18 septembre 2013. Avis n° 127 dpos le 6 novembre 2013 par M. Language Acquisition! Jean-Pierre Caffet.

Projet de loi de financement de la scurit sociale pour 2014, rejet en 1 re lecture par le Snat le 14 novembre 2013 , TA n° 30. Commission Mixte Paritaire (Dsaccord) Convocation d'une commission mixte paritaire. La Commission Mixte Paritaire a nomm MM. Essay! Yves Daudigny rapporteur le 18 novembre 2013 et Grard Bapt rapporteur le 18 novembre 2013.

Rapport dpos le 18 novembre 2013 par M. Rosemary Dobson Poems Analysis! Grard Bapt rapporteur, mis en ligne le 19 novembre 2013 12 heures 30, sous le n° 1557 l'Assemble nationale et par M. Essay! Yves Daudigny rapporteur, sous le n° 150 au Snat. Assemble nationale - Nouvelle lecture. Projet de loi de financement de la scurit sociale, adopt par l'Assemble nationale, pour 2014 et qui a fait l'objet d'un vote de rejet, par le Snat, au cours de sa sance du 14/11/2013, n° 1552, dpos le 14 novembre 2013 (mis en ligne le 19 novembre 2013 11 heures 45). Travaux des commissions. Examen du texte au cours de la runion du 20 novembre 2013 9 heures.

Rapport n° 1564 dpos le 20 novembre 2013 (mis en ligne le 22 novembre 2013 18 heures 55) par MM. Information & Importance! Grard Bapt (Recettes et quilibre gnral), Christian Paul (Assurance maladie), Mme Martine Pinville (Secteur mdico-social), MM. Essay! Michel Issindou (Assurance vieillesse), Laurent Marcangeli (Accidents du travail - maladies professionnelles) et Mme Marie-Franoise Clergeau (Famille) Scrutin public n° 0725 sur l'ensemble du projet de loi de financement de la scurit sociale pour 2014 (nouvelle lecture). Of Homes! au cours de la 1 re sance du mardi 26 novembre 2013. Snat - Nouvelle lecture. Projet de loi de financement de la scurit sociale, adopt par l'Assemble nationale, en nouvelle lecture, pour 2014, n° 170, dpos le 26 novembre 2013. et renvoy la commission des affaires sociales. Rapport n° 171 dpos le 26 novembre 2013 par M. On Advances! Yves Daudigny. Projet de loi de financement de la scurit sociale pour 2014, rejet en Nouvelle lecture par le Snat le 28 novembre 2013 , TA n° 41.

Assemble nationale - Lecture dfinitive. Texte soumis l'examen de l'Assemble nationale, en lecture dfinitive, pour 2014, adopt en Nouvelle lecture par l'Assemble nationale, le 26 novembre 2013, TA n° 244. Rapport n° 1594 dpos le 2 dcembre 2013 (mis en ligne le 2 dcembre 2013 17 heures 30) par MM. Will! Grard Bapt (Recettes et quilibre gnral), Christian Paul (Assurance maladie), Mme Martine Pinville (Secteur mdico-social), MM. On Advances! Michel Issindou (Assurance vieillesse), Laurent Marcangeli (Accidents du travail - maladies professionnelles) et Mme Marie-Franoise Clergeau (Famille) Scrutin public n° 0736 sur le projet de loi de financement de la scurit sociale pour 2014 (lecture dfinitive). Religion! au cours de la 2 e sance du mardi 3 dcembre 2013. Saisine du Conseil constitutionnel le 4 dcembre 2013 par plus de soixante snateurs, en application de l'article 61 alina 2 de la Constitution. Saisine du Conseil constitutionnel le 5 dcembre 2013 par plus de soixante dputs, en application de l'article 61 alina 2 de la Constitution. Dcision n° 682 DC du 19 dcembre 2013. In Art! [sur le site du conseil constitutionnel]

Extrait du compte rendu du Conseil des ministres du 09/10/13. La ministre des affaires sociales et de la sant et le ministre dlgu auprs du ministre de l'conomie et des finances, charg du budget, ont prsent le projet de loi de financement de la scurit sociale pour 2014. •prs de 2,5 milliards d'euros, en limitant 2,4 % la progression de l'ONDAM ; •800 millions d'euros du fait du dcalage de la date de revalorisation des pensions (hors minimum vieillesse) dans le cadre de la rforme des retraites ; •200 millions d'euros dans le cadre de la rforme des prestations familiales ; •500 millions d'euros d'conomies de gestion des organismes de scurit sociale. Des ressources seront galement apportes en 2014 la scurit sociale. Of Senior Leader Goal Essay! Il s'agit de la hausse des cotisations vieillesse prvue dans le cadre de la rforme des retraites ainsi que des mesures proposes en projet de loi de finances dans le cadre de la rforme des prestations familiales et de la gnralisation des complmentaires sant, dont le rendement sera transfr la scurit sociale en modifiant le partage de la TVA entre tat et scurit sociale, au profit de cette dernire, hauteur de 3Mds€. En plaant les conomies au cśur de l'effort de redressement sans alourdir le cot du travail, le PLFSS 2014 s'intgre dans une stratgie de finan. Le projet de loi sur les retraites a t prsent en conseil des ministres le 18 septembre.

Le solde de la branche s'amliorera notamment sous l'effet du report au 1er octobre 2014 de l'indexation des pensions, sauf pour les plus modestes, et de la hausse de 0,15 point des cotisations patronales et salariales, pour un impact global sur les rgimes de base de plus de 2,5 milliards d'euros. In Art! La fiscalisation des majorations de pension bnficiera la branche vieillesse compter de 2015. Will Ferrell Blackberry! Le PLFSS 2014 traduira galement les mesures annonces en juin dernier pour assurer la prennit de la branche famille et rendre la politique familiale plus juste. Essay On Advances! Les comptes de la branche famille s'amlioreront ainsi grce aux mesures de modulation de l'allocation de base de la prestation d'accueil du jeune enfant, d'uniformisation du montant du complment de libre choix d'activit, tout en intgrant l'impact des mesures de justice majorant le complment familial et l'allocation de soutien familial. Of Homes Essay! Le plafonnement de l'avantage fiscal dcoulant de la prsence d'enfants au foyer (quotient familial) bnficiera intgralement la branche famille. On Advances! La baisse de la cotisation patronale pour la branche famille (0,15 point sur 5,4 points) sera intgralement compense la branche. Information Of Homes Essay! La convention d'objectifs et de gestion de la caisse nationale d'allocations familiales traduit la priorit donne au dveloppement des modes de garde, avec l'objectif de 275 000 nouvelles solutions d'accueil des jeunes enfants.

La fixation d'un objectif des dpenses d'assurance maladie en hausse de 2,4% pour 2014 implique un effort d'conomie de 2,4 milliards d'euros par rapport une volution des dpenses tendancielles de 4% au-del de la sous-excution de 500 millions. On Advances! Ces efforts s'accompagneront d'volutions structurantes destines consolider le modle franais de protection sociale solidaire. Dobson Poems! Le PLFSS 2014 est ainsi la premire tape dans la mise en śuvre de la stratgie nationale de sant, visant : •renforcer les soins de premier recours, dans le cadre du pacte territoire sant (cooprations interprofessionnelles, tlmdecine) ; •engager la rforme du financement des hpitaux (prise en compte des tablissements isols, meilleure matrise des volumes d'activit, exprimentation d'un financement au parcours) ; •adapter le pilotage financier du systme de sant (identification d'un sous-objectif ONDAM pour le fonds d'intervention rgional, amlioration de la fongibilit). Le PLFSS marquera une nouvelle tape dans la gnralisation de la complmentaire sant. Essay In Art! Le relvement du plafond de ressources de la CMU complmentaire et de l'Aide la complmentaire sant le 1er juillet dernier et l'extension de la couverture collective prvue par la loi sur la scurisation de l'emploi en ont constitu les premires tapes. The Impact Of Senior Leader Development! Il permettra d'amliorer l'accs des bnficiaires de l'ACS des contrats de qualit avec une nouvelle procdure d'appels d'offre. On Advances! D'autres mesures permettront de cibler des personnes fragiles (tudiants isols).

Il renforcera, pour tous les assurs des complmentaires sant, les exigences des contrats solidaires et responsables au service de la rgulation du systme de sant et de la limitation des restes charge, en amliorant leur panier de soins minimal et en dissuadant les pratiques tarifaires abusives. Of Senior Goal Essay! Le PLFSS permettra, en matire de sant publique, de prendre en charge des substituts nicotiniques pour les jeunes et de faciliter l'accs la contraception avec l'instauration du tiers payant pour les actes associs la prescription de contraception pour les mineures. Essay On Advances In Art! Il favorisera une politique du mdicament efficiente et favorable l'innovation, en mettant en śuvre les engagements du conseil stratgique des industries de sant (simplification de l'inscription des actes innovants), en exprimentant la dispensation des mdicaments l'unit pour certains antibiotiques et en mettant en place un rpertoire des biosimilaires. Principales dispositions du texte. Article 1er : Approbation des tableaux d'quilibre, par branche, des rgimes obligatoires de base de scurit sociale, du rgime gnral de scurit sociale, et du Fonds de solidarit vieillesse (FSV) pour 2012. Approbation des dpenses constates dans le champ de l'objectif national de dpenses d'assurance maladie (ONDAM), des recettes affectes au Fonds de rserve pour les retraites (FRR), des recettes mises en rserve par le FSV et du montant de la dette amortie par la Caisse d'amortissement de la dette sociale (CADES) pour 2012. Article 4 : Institution d'une contribution des organismes complmentaires au financement du forfait « mdecin traitant ». Article 5 : Rectification du montant des dotations de l'assurance maladie au Fonds de modernisation des tablissements de sant publics et privs (FMESPP), l'Office national d'indemnisation des accidents mdicaux (ONIAM) et l'tablissement de prparation et de rponse aux urgences sanitaires (EPRUS) pour 2013. Article 6 : Rectification des prvisions de recettes et des objectifs de dpenses par branche des rgimes obligatoires de base de scurit sociale, du rgime gnral de scurit sociale et du fonds de solidarit vieillesse pour 2013. Rectification de l'objectif d'amortissement de la dette sociale pour 2013. Article 7 : Rectification de l'objectif national de dpenses d'assurance maladie et de ses sous-objectifs pour 2013.

Article 8 : Harmonisation des modalits d'assujettissement aux prlvements sociaux des produits de placement. Article 10 : Cration d'une cotisation dplafonne d'assurance vieillesse de base pour le rgime social des indpendants (RSI). Article 14 : Intgration des dficits des branches maladie et famille dans le champ des reprises de la CADES. Article 15 : Mesures de transferts de recettes au sein du primtre des organismes entrant dans le champ de la loi de financement de la scurit sociale. Article 16 : Reconfiguration des exonrations en faveur de l'apprentissage, des contrats de service civique et des chantiers d'insertion. Article 17 : Approbation du montant de la compensation des exonrations, rductions ou abattements d'assiette de cotisations ou contributions de scurit sociale. Article 18 20 : Approbation de prvisions de recettes et de tableaux d'quilibre. Article 23 : Encadrement de la dclaration sociale nominative rendue obligatoire au plus tard le 1er juillet 2015. Article 29 : Financement, titre exprimental et pour une priode de quatre ans, d'actes de tlmdecine pour les patients pris en charge en ville ou en structures mdico-sociales.

Article 30 : Amlioration de la protection sociale des professionnelles de sant relevant du rgime des praticiens et auxiliaires mdicaux conventionns en cas d'arrt maladie li la grossesse. Article 31 : Exprimentation de nouveaux modes d'organisation des transports de patients par des entreprises de transports sanitaires agres ou des taxis conventionns. Article 33 : Rforme de la tarification l'activit des tablissements de sant, notamment par l'adaptation du financement des activits « isoles » ralises par des tablissements de sant situs dans des zones peu dense. Article 37 : Exprimentation, sur une priode de quatre ans, de la dlivrance l'unit des mdicaments appartenant la classe des antibiotiques. Article 38 : promotion et scurisation de la prescription des mdicaments biologiques similaires. Article 43 : Renforcement de l'aide au sevrage tabagique destination des jeunes. Article 49 : Fixation des objectifs de dpenses de la branche maladie, maternit, invalidit et dcs pour 2014. Article 50 : Fixation du montant de l'objectif national de dpenses d'assurance maladie pour 2014. Article 51 : Fixation des objectifs de dpenses de la branche vieillesse pour 2014. Article 54 : Objectifs de dpenses de la branche accidents du travail et maladies professionnelles pour 2014.

Article 55 : Majoration du complment familial pour les familles les plus modestes. Article 56 : Modulation du montant de l'allocation de base de la prestation d'accueil du jeune enfant (PAJE) selon le niveau de ressources des familles. Article 60 : Fixation des objectifs de dpenses de la branche famille pour 2014. Principaux amendements des commissions. le mercredi 16 octobre 2013.

Rapport n° 1470 dpos le 17 octobre 2013. Rapport de MM. Advertisement! Grard Bapt (Recettes et quilibre gnral), Christian Paul (Assurance maladie), Mme Martine Pinville (Secteur mdico-social), MM. On Advances! Michel Issindou (Assurance vieillesse), Laurent Marcangeli (Accidents du travail - maladies professionnelles) et Mme Marie-Franoise Clergeau (Famille) Principaux amendements adopts par la commission : Attribution d'une dotation de 130 millions d'euros de recettes supplmentaires la CNSA afin de financer courant 2014 les premires mesures de la loi relative la prise en charge de la perte d'autonomie des personnes ges (Amendement prsent par M. Ferrell Blackberry! Christian Paul, SRC, Nivre, rapporteur pour l'assurance maladie, et plusieurs de ses collgues). Contribution spcifique sur les boissons nergisantes (Amendement prsent par M. On Advances In Art! Grard Bapt, SRC, Haute-Garonne, rapporteur pour les recettes et l'quilibre gnral). Dfinition d'un cadre gnrique applicable l'ensemble des actions exprimentales dans le cadre des parcours de sant (Amendement prsent par M. Information & Importance Essay! Christian Paul, SRC, Nivre, rapporteur pour l'assurance maladie). Intgration des pharmaciens d'officine dans l'exprimentation de financement d'actes de tlmdecine (Amendements identiques prsents par M. In Art! Christian Paul, SRC, Nivre, rapporteur pour l'assurance maladie, M. Acquisition! Jean-Pierre Barbier, UMP, Isre, M. On Advances In Art! Jean-Pierre Door, UMP, Loiret, et plusieurs de ses collgues, et M. Advertisement! Francis Vercamer, UDI, Nord).

Rduction de quatre trois ans de la dure de l'exprimentation de la dlivrance l'unit des mdicaments appartenant la classe des antibiotiques (Amendement prsent par M. On Advances In Art! Christian Paul, SRC, Nivre, rapporteur pour l'assurance maladie). Amlioration du recours au dispositif de l'assurance complmentaire de sant (ACS) des personnes bnficiaires du minimum vieillesse, en automatisant le renouvellement de leur droit, attribu jusqu' maintenant pour une dure d'un an blackberry (Amendement de la commission des affaires sociales). Possibilit de procder l'valuation commune de plusieurs services complmentaires grs par le mme organisme gestionnaire afin de gnrer des conomies (Amendement prsent par Mme Brengre Poletti, UMP, Ardennes). Remise par le Gouvernement au Parlement d'un rapport dtaillant l'volution de la prise en charge par l'assurance maladie obligatoire des dpenses de sant et les facteurs d'volution (Amendement prsent par Mme Jacqueline Fraysse, GDR, Hauts-de-Seine). Mise en place d'un nouveau mcanisme tarifaire des tablissements thermaux (Amendement prsent par M. On Advances! Grard Bapt, SRC, Haute-Garonne, rapporteur pour les recettes et l'quilibre gnral).

Dans le cadre des contrles des arrts de travail et des indemnits journalires, exclusion des samedis, dimanches et jours fris dans le calcul du dlai maximal dont dispose le mdecin contrleur pour transmettre son rapport au service mdical de l'assurance maladie (Amendement prsent par M. The Impact Of Senior Leader! Pierre Morange, UMP, Mme Brengre Poletti, UMP, Ardennes).