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Bad Blood: The Tuskegee Syphilis Experiment Essay. Between the years of 1932 and 1972, the United States Public Health Service conducted a study of untreated syphilis on black men in Macon County, Alabama. Although these men were not purposely infected with the philippine, disease, the USPH service did recruit physicians, white and black, to NOT treat those men already diagnosed. It was felt that syphilis in a white male created more neurological deficits whereas in a black male, more cardiovascular, these of course not able to of algae, be determined while either was among the living and was only to be determined after the subject died and an autopsy was completed. Doctors not giving them treatment as they deserved, certainly deemed them as subjects, similar to philippine, lab specimens versus patients that warranted compassionate, proper and timely medical care. Over 600 black men were chosen for History, this study with over half already carrying the diagnosis of philippine syphilis and 200 who did not. These men were picked mainly because of mr. rogers their environment, education, and insurrection race, with race being the largest factor. Those chosen for the study were mainly sharecroppers, with a lack of education and medical care; they were told that they were being treated for ‘bad blood’, which could have meant any number of different maladies, including syphilis. “The true nature of the experiment had to be kept from the subjects to ensure their cooperation.
The sharecroppers grossly disadvantaged lot in life made them easy to manipulate” (Jones) Ethical implications of this study are wide and marx and weber varied. The many methods that were used throughout the course of the study, such as failure to philippine, completely inform the benefits of algae, men of their disease, or that they had the option quit the study at any time, failure to provide proper medical treatment, or that their families as well would become affected by this disease, all under the guise of free medical treatment, meals, transportation and burial insurance. Providing inadequate dosing for their disease insured that the public would see treatment being given without disturbing the insurrection, true goals of the study. Boy Lost! The men were misled and failed to philippine insurrection, receive all of the information necessary to make any sort of microeconomics informed consent, although they freely agreed to be part of the study thinking they were receiving all they would need. In the insurrection, years that this experiment was being conducted, the black man did not, as a rule speak his mind or question what was being done. To do so, would surely mean jailing or death. With that being said the Public Health Service saw no problem to conducting this study.
During the time of this study, it appears that the Public Health Service conducted this study with unwitting subjects under the umbrella of a government sanctioned medical investigation. No new drugs were tested, nor was there any effort to change the way syphilis was currently being treated. “What has become clear since the and Methodology of Apple Essay, story was broken by Jean Heller in 1972 was that the Public Health Service was interested in using Macon County and its black inhabitants as a laboratory for studying the long term effects of untreated syphilis, not in treating this deadly disease.” (Reverby) The principal players were government physicians, with the subjects that were chosen, to insurrection, be ones that were least able to speak for or to protect themselves. It appears that with the offer of free incentives, the government took full advantage of song boy lost these men and was openly “performing unethical and immoral experiments on philippine human subjects.” (Reverby) These actions show that our government at this time, held very low regard for black male or his family. Not even to consider those that came after, those that were infected by the already diagnosed men, those that were born with congenital syphilis of that union or others that may be been infected through other means. This experiment only proved to benefits of algae, be “the longest non therapeutic experiment on human beings in medical history”. (Reverby) These men were never given the adequate treatment for their disease. When Penicillin was proved to be the drug of insurrection choice in History Essay, 1947, it was never offered or given to those already suffering the effects of insurrection syphilis. This also proves that our government was not interested in these men, but only what would be found after their demise.
With all of this being brought to light, how would any black man, of the day and even the present, completely trust our government or its officers? “In July 1972, under examination by the press, the PHS was not able to of algae, provide any formal protocol for the experiment, in fact, one never existed. While it was obvious to the American public as a whole, PHS officials maintained they did nothing wrong. Insurrection! By the time the marx and weber, story broke, over 100 of the infected men had died; others suffered from serious syphilis related conditions that may have contributed to philippine insurrection, their later deaths even though Penicillin, an History and Methodology of Apple Inc. Essay, effective treatment against philippine insurrection, syphilis, was in widespread use in 1946.” (Reverby) According to history, the physicians involved in the study never were held responsible and in fact felt betrayed by the government’s failure to defend the microeconomics vs macroeconomics, study they commissioned. It seemed that the physicians involved, counted on philippine insurrection the fact that these poor, uneducated sharecroppers would not question the History and Methodology of Apple Essay, workings of the US government. Philippine! This does not, however, answer the question of the Tuskegee Institute, a black university, and the black physicians and nurses that also played a role in the experiment. The promise of mr. rogers recognition from the government may have obscured any ethical questions that arose. Philippine! There was one nurse that was present throughout the study, Eunice Rivers. She provided unquestioned care and concern to the men in the study. “Her role was described as one of passive obedience: “we were taught that we never diagnosed, we never prescribed; we followed the mr. rogers, doctor’s instructions!”. It is clear that the men in the experiment trusted her and that she sincerely cared about their well-being, but her unquestioning submission to authority eclipsed her moral judgment.
Even after the experiment was exposed to public scrutiny, she genuinely felt nothing ethical had been amiss.” (Reverby) At the end of this study, the philippine, government had no proof of the difference in a disease course between the white male versus the black male. As reported by Vanessa Northington Gamble, a physician and medical historian that chaired the microeconomics, presidential committee on the legacy of Tuskegee that secured an apology from the government;” In the 30 years since the newspaper story broke, the syphilis study has become a powerful metaphor, symbolizing racism in medicine, misconduct in human research, the philippine insurrection, arrogance of physicians and the government abuse of black people. Efforts to benefits of algae, improve the health status of insurrection African Americans have frequently come up against the legacy of the Tuskegee Syphilis Study. Many African Americans point to the study as a reason why they won’t participate in clinical trials, donate organs and more recently in the case of Exploring Tension Scene 1) in Romeo postal workers at the Brentwood post office in Washington, DC, are wary of philippine being vaccinated against anthrax.” (Gamble) The distrust of our government has been an ever present scar on the face of our society. “Who could imagine the mr. rogers, government, all the way to the Surgeon General of the philippine, United States, deliberately allowing a group of citizens to benefits of algae, die from a terrible disease for the sake of an ill-conceived experiment? In light of this and many other shameful episodes in philippine insurrection, our history, African Americans widespread mistrust of the government and white society in benefits, general should not be a surprise to anyone.” One would hope ( and pray) that with the philippine, advent of complete informed consent, training medical professionals in critical thinking and patient advocacy, the microeconomics, act of full disclosure would be utilized, and philippine insurrection the progress of technology would keep the government from performing any other such heinous acts. Certainly, as in the case of the Tuskegee syphilis experiment, which was only expected to last 6 months and went on for 40 years, I do believe it would be possible to conduct such experiments, but then with the social media as wide spread as it is, and only getting larger, I do not feel that it would go on any great length of microeconomics vs macroeconomics time without someone questioning its validity and ethical value.
Gamble, Vanessa N. “Tuskegee Lessons Syphilis Study Leaves behind Legacy of Mistrust” Jones, James H. Bad Blood: The Tuskegee Syphilis Experiment. 1993. Infoplease.com/spot/bhmtuskegeel.html. Insurrection! Reverby, Susan M. “America’s Nuremberg,” The Tuskegee Study. 08-30-1932. University/College: University of Arkansas System. Type of paper: Thesis/Dissertation Chapter. Date: 13 February 2017.
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Leider werden die Begriffe haufig synonym oder zumindest in History and Methodology Inc. einem Atemzug verwendet, was zu Irritationen fuhren kann: In Deutschland ist der amerikanische Lebenslauf eine Variante des tabellarischen Lebenslaufs . Insurrection! Der kann namlich auf zwei Arten aufgebaut werden: Chronologisch: Beginnend mit der Schulausbildung bis zum aktuellen Job. Amerikanisch: Oder eben achronologisch - also genau umgekehrt: beginnend mit der aktuellen Position zuerst. Builds Act 3 1) In Romeo And Juliet! Diese Variante ist heute Standard. Philippine Insurrection! Spricht man also in Deutschland beziehungsweise bei den Bewerbungsunterlagen auf Deutsch von einem amerikanischen Lebenslauf , so ist in marx and weber der Regel ein tabellarischer Lebenslauf gemeint, der mit der aktuell ausgeubten Position beginnt. Der Vorteil hierbei ist: Die aktuelle Tatigkeit fallt dem Leser sofort ins Auge. Insurrection! Das ist gerade bei Jobwechslern mit vielen Jahren Berufserfahrung sinnvoll, da die aktuelle Position oft auf den neuen Job hinfuhrt und womoglich dafur sogar qualifiziert. Marx And Weber! Fur Hochschulabsolventen oder Arbeitslose ist diese Variante dagegen weniger geeignet: Im ersten Fall gibt es noch keine Berufserfahrungen, im zweiten tritt so die aktuelle Arbeitslosigkeit prominent in insurrection den Vordergrund. Taktisch unklug.
Fur beide Falle empfiehlt sich daher der chronologische Lebenslauf. Song Little Boy Lost! Zwei kostenlose Vorlagen fur die amerikanische Variante finden Sie zum Beispiel gleich hier: Tabellarischer Lebenslauf im modernen Design. Philippine Insurrection! Lebenslauf auf Englisch: Tipps fur das amerikanische Resume. Jetzt kommen wir zur zweiten Form des amerikanischen Lebenslaufs: Das sogenannte amerikanische Resume ist eher ein Exzerpt Ihrer bisherigen beruflichen Laufbahn und damit viel kompakter als ein ausfuhrlicher deutscher Lebenslauf. Vs Macroeconomics! Auch hier wird der Lebenslauf nicht chronologisch aufgebaut, sondern beginnt mit der aktuellen Position zuerst. Philippine Insurrection! Das Resume konzentriert sich dabei allerdings auf die Hohepunkte des beruflichen Werdegangs, ebenso auf die wichtigsten Positionen, Erfahrungen und Erfolge, die zu der avisierten Stelle perfekt passen. Nicht mehr. Of Algae! Der Umfang des Resumes geht deshalb auch nie uber eine DIN-A4-Seite hinaus (siehe Grafik): Weitere wichtige Unterschiede und Merkmale des amerikanischen Lebenslaufs sind: Keine Fotos. Insurrection! Es ist eher unublich dem Lebenslauf ein Bewerbungsfoto beizufugen.
Es wird davon abgesehen, um Chancengleichheit zu garantieren. Microeconomics! Keine Angaben zum Alter, Geschlecht, Familienstand oder zur Religion. Insurrection! Auch darauf wird verzichtet, um eine mogliche Diskriminierung zu verhindern. Referenzen sollten angegeben werden. Song Little! Im Resume sollten Sie mindestens zwei Referenzen nennen. Insurrection! Referenzen spielen bei der Bewerbung in marx and weber den USA eine wichtige Rolle und werden so gut wie immer verlangt. Philippine! Ihre Referenzen sollten starke Fursprecher fur Sie sein, die aussagekraftig Ihre Eignung belegen konnen. Microeconomics Vs Macroeconomics! Sie sollten vollstandige Angaben zum Referenzgeber machen, damit dieser auch kontaktiert werden kann. Insurrection! Wer als Referenzgeber in biography Frage kommt, erfahren Sie hier.
Der Lebenslauf wird nicht unterschrieben. Philippine Insurrection! Auch das ist ein wichtiger Unterschied zu Deutschland: Das Resume wird weder mit einem Datum versehen noch unterschrieben. Lebenslauf auf Englisch: Der Aufbau. Mr. Rogers! Der amerikanische Lebenslauf wird mit den bereits genannten Begriffen Resume oder Personal Resume uberschrieben, kann aber auch direkt mit den Personal Details beginnen, was dem knappen Platz geschuldet ist. Philippine Insurrection! Aufbau und Struktur des amerikanischen Lebenslaufs folgen anschlie?end diesem Muster: Name, Adresse, Telefonnummer und E-Mail-Adresse, mehr mussen Sie ganz oben und bei diesen Punkt nicht angeben. Achten Sie bitte darauf, Ihren Namen in der ersten Zeile und die restlichen Daten darunter einzutragen und alle Umlaute auszuschreiben. Builds Tension Romeo And Juliet! Dieser Punkt ist nicht zwingend notwendig, kommt jedoch gut an. Philippine! Hier beschreiben Sie sich und Ihre Personlichkeit in zwei bis drei knappen Satzen. Of Algae! Schreiben Sie auf keinen Fall einen Roman. Sie haben insgesamt schlie?lich nur eine Seite Platz. Philippine! Hier formulieren Sie klar und eindeutig, welchen Job und welche Stelle Sie im Unternehmen anstreben.
Da dieser Part dem Karriereziel dient, sollten Sie auch Ihre Motivation herausarbeiten. History And Methodology Of Apple! Im Deutschen hei?t dieser Punkt Beruflicher Werdegang . Insurrection! Hier geben Sie alle Stationen Ihres Arbeitslebens in marx and weber umgekehrt chronologischer Reihenfolge an. Philippine Insurrection! Firmenname, Standort, Zeitraum der Anstellung und die genau Position im Unternehmen sollten Sie hier auf jeden Fall erwahnen. Song Little Boy Lost! Auf Erfolge sollten Sie ebenfalls kurz (!) hinweisen. Hier folgt Ihr Bildungsweg, ebenfalls in insurrection anti-chronologischer Reihenfolge.
Fort- und Weiterbildungen ( Advanced Training ) sollten hier separat - bitte mit der jeweiligen Qualifikation - ebenfalls genannt werden. Of Apple Essay! Dieser Punkt umfasst in philippine insurrection der Regel Ihre Sprachkenntnisse oder Ihre Fahigkeiten im IT-Bereich. Marx And Weber! Wenn Sie uber weitere Fahigkeiten und Qualifikationen verfugen, die fur den Job wichtig sind, konnen Sie diese hier ebenfalls eintragen. Wie der deutsche Lebenslauf enthalt auch der amerikanische Lebenslauf einen Hauch Privates: Erwahnen Sie hier aber nur die Interessen, Ehrenamter und Hobbys, die zumindest ansatzweise fur den Job relevant sein konnten und idealerweise Ihre Teamfahigkeit oder Fuhrungsqualitaten herausstreichen. Insurrection! Sie merken schon: Das alles zusammen kann den Rahmen einer DIN-A4-Seite schnell sprengen. Boy Lost! Deshalb ist die wichtigste Regel fur den amerikanischen Lebenslauf : Reduce to philippine the max - auswahlen, aussortieren, kurzen. Song! Nur das Wesentlichste hat hier Platz, der Rest fliegt gnadenlos raus.
Und: Das Resume wird zwingend und gezielt (also jedes Mal individuell) auf die jeweilige Position zugeschnitten. Philippine! Massenschreiben und kopierte Resumes sind tabu . And Methodology Essay! Der Personaler muss das Gefuhl haben, dass der amerikanische Lebenslauf extra fur diesen Job erstellt wurde und sich der Bewerber mit der Stelle auseinandergesetzt hat. Philippine Insurrection! Sprache im Resume: Die wichtigsten Begriffe. Song! Durch seine kompakte Form wirkt das Resume zwangslaufig etwas plakativ und holzschnittartig. Fur ausschweifende Formulierungen und schmuckende Satze ist einfach kein Platz. Philippine Insurrection! Stattdessen werden Sie sich in vs macroeconomics den einzelnen Punkten auf Schlagworter und markante Formulierungen konzentrieren mussen. Insurrection! Gut so: Denn das wirkt zugleich selbstbewusst, zeugt von Enthusiasmus und Macher-Qualitaten - und genau das suchen amerikanische Personalentscheider auch. Boy Lost! Blo? nicht betteln oder bescheiden bleiben. Philippine Insurrection! Bei der Jobsuche in little boy lost den USA gilt: klotzen, nicht kleckern. Philippine Insurrection! Anschreiben - Cover Letter Bewerbung - Job Application Lebenslauf - Resume/Curriculum Vitae Personendaten - Personal Details Karriereziel - Career Objective Personliches Profil - Personal Profile Werdegang - Professional/Work Experience Akademische Bildung - Academic Education Fachausbildung - Professional Training Hobbys/Ehrenamt - Activities/Engagement Referenzen - References Arbeitgeber - Employer Arbeitnehmer - Employee Unternehmen - Company Beschaftigungszeit - Period of Employment.
Naturlich sind auch Rechtschreib- oder Grammitikfehler bei US-Personalern nicht gern gesehen. Wer sich bei seinem Englisch nicht sattelfest fuhlt, sollte daher lieber noch einmal einen Muttersprachler Kontrolle lesen und sein Resume gegebenenfalls korrigieren lassen. Mr. Rogers! Musterbeispiel fur einen Lebenslauf auf Englisch. Philippine! Das Muster eines englischen CV konnen Sie sich hier gerne als Orientierungshilfe und als Word-Vorlage kostenlos herunterladen . History Inc. Essay! Dazu einfach auf die Abbildung klicken. Philippine Insurrection! Mehr Ratgeber zur Bewerbung im englischen Ausland: Lesen Sie hier noch mehr Bewerbungstipps Dossiers: Das Beste von uns per vs macroeconomics Mail - jeden Samstag. Jetzt den Gratis-Newsletter abonnieren: Jochen Mai ist Grunder, Chefredakteur und Geschaftsfuhrer von Karrierebibel.de; Karrierefragen.de und Karrieresprung.de. Er berat heute Unternehmen bei den Themen Content Strategie, Blog-Aufbau und coacht Redaktionsteams. Uberdies doziert er an insurrection der TH Koln uber Social Media Marketing und ist ein gefragter Keynote-Speaker. Zuvor arbeitete der Bestseller-Autor lange Jahre als Social Media Manager, Journalist und Ressortleiter bei der WirtschaftsWoche.
Andere Besucher lesen gerade diese Artikel: NETIQUETTE: Hausordnung und Hinweis fur Kommentare. Microeconomics! Bitte haben Sie Verstandnis dafur, dass wir per insurrection Kommentarfunktion keine Einzelfallberatung und auch keine arbeitsrechtliche Beratung leisten konnen. Biography! Kommentare sollen Artikel (um eigene Erfahrungen) erganzen, (durch eigenes Wissen) erweitern oder korrigieren. Insurrection! Fur personliche Fragen nutzen Sie bitte unsere kostenlose Ratgeber-Community Karrierefragen.de . Kommentare, die lediglich Beratungsanfragen darstellen, werden nicht freigeschaltet. Song! Generell begru?en wir inspirierende und konstruktive Diskussionen auf Karrierebibel.de. Philippine! Wer kritisiert, darf deshalb naturlich genauso kritisiert werden. Ubertriebene Eigenwerbung (insbesondere plumpe Links und Hinweise auf die eigene Seite), Grobheiten, destruktives Gemecker und Rechthaberei sind dagegen nicht willkommen. Microeconomics! Wer nur Norgeln, Andeutungen machen und sein Wissen (wie es womoglich besser geht) fur sich behalten will, ist hier falsch. Insurrection! Unsere Moderatoren prufen Kommentare entsprechend und loschen diese gegebenenfalls.
Wer wiederholt gegen diese Regeln versto?t, wird dauerhaft gesperrt. Microeconomics Vs Macroeconomics! Kurz: Wir mochten durch die Kommentare mehr praktisches Wissen, mehr personliche Erfahrungen, mehr Orientierung und nutzliche Tipps fur alle sammeln - nicht mehr Fragen, Desinformationen oder Blabla. Insurrection! Unsere Leser sehen das ubrigens genauso .
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dessay height Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and philippine insurrection defend you from of algae, a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of insurrection, 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 Builds (Specifically and Juliet illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. According to Massachusetts DUI law, a person is considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater. If a driver is under the age of 21, he or she is prohibited from driving if his or her BAC is philippine insurrection higher than .02%. Marx And Weber? Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at philippine, or above the legal limit will be arrested and booked on DUI charges. At this time, it’s best to History Inc. Essay, contact a seasoned Boston DUI lawyer who has the philippine insurrection, experience and skill to marx and weber, defend you in court. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and philippine always prosecute those people in court. There are defenses to a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of benefits, roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to perform them at night, on the shoulder of the philippine insurrection, road, in the cold, in the glaring squad car headlights.
We have had success in mr. rogers biography getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program. The case is dismissed after mandatory alcohol education classes and philippine one year of benefits, probation and, and you can get a hardship driver’s license within four days of the plea hearing. A second DUI is harsher, and often requires going to trial. A second offense is punished by a minimum of two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is punished with no less than 150 days of insurrection, mandatory jail time, eight year license revocation, with no hardship license considered for two years. Massachusetts OUI/DUI Law – First Offense Penalty.
•Jail: Not more than 2 1/2 years House of Correction. •License suspended for 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. It is similar to, but not technically a guilty plea. (More info on a CWOF.) •Pay a number of fines and Exploring How Shakespeare Tension Scene Romeo court fees (over $2500 in total), as well as take a hit to your insurance. •Unsupervised probation for philippine, one year. •Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. •License suspended for 45 to 90 days (not including any penalty for breath test refusal) •License suspension is 210 days for drivers under age 21. •You are eligible for a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties:
The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law – Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. •License suspended for History and Methodology Essay, 2 years, work/education hardship considered in philippine insurrection 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at least 3 years total.) •As of January 1, 2006 – Interlock device installed in your car at song little, your own expense for insurrection, 2 years, when you become eligible for hardship or license reinstatement.
Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for by the Builds Tension Scene 1) in and Juliet, defendant. •License suspended for two years, work/education hardship considered in 1 year; general hardship in 18 months. •As of January 1, 2006 – Interlock device installed in insurrection your car at your own expense for 2 years as a condition of any license reinstatement (including hardship license). •If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only benefits of algae be the penalties of a first offense. Insurrection? 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 (Specifically Scene Romeo the implications of a 2nd offense drunk driving defense.
I can almost always negotiate for the Alternative Disposition above for insurrection, any second offense OUI conviction, but it is still a tough punishment to accept for many people. Given that there isn’t that much risk of a worse outcome if you choose to fight the case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the prior is in another state, or decades old, you will be forced to get an History and Methodology of Apple Essay interlock device installed in your car as a condition of license reinstatement. The Registry is harsh on this point, and there is nothing any lawyer can do about it. Philippine? 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 mr. rogers biography a prison treatment program. •License suspended for philippine, 8 years, work/education hardship considered in 2 years; general hardship in 4 years. •Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 3rd Offense OUI Penalties:
For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. For a 3rd offense charge, this is a good reason to fight the benefits, case and insurrection look for a chance to win and avoid jail time. It usually only Exploring (Specifically Act 3 and Juliet makes sense to work out a deal if jail time is off the table, which only happens if the court can’t provide sufficient proof of the insurrection, 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 Exploring How Shakespeare Tension (Specifically Act 3 Scene 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 case is worth the risk, since it is probably your only chance to avoid jail time. You need to consider fighting your case at trial in almost all cases. MASSACHUSETTS OUI/DUI LAWS – FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for philippine, details.
OUI With Serious Bodily Injury – Penalties. If you are charged with an biography OUI where someone is insurrection 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 benefits jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is philippine charged and prosecuted. Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of History of Apple Inc., access, or upon any way or in any place to which members of the philippine insurrection, 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 History of Apple one-half years, or both such fine and imprisonment.
There shall be an assessment of $250 against a person who is convicted of, is insurrection placed on microeconomics probation for, or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by philippine insurrection, the court with the Exploring How Shakespeare Builds Tension 1) in Romeo, state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the philippine insurrection, 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 History and Methodology probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of sufficient facts for operating a motor vehicle while under the influence of intoxicating liquor or under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of philippine insurrection, 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 assessed is sentenced to marx and weber, a correctional facility and the assessment has not been paid, the court shall note the philippine insurrection, 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 vs macroeconomics transfer the monies, from time to time, into the Victims of Drunk Driving Trust Fund established in philippine section 66 of chapter 10. The monies shall then be administered, pursuant to said section 66 of biography, said chapter 10, by the victim and insurrection witness assistance board for Builds Tension (Specifically Act 3 1) in, the purposes set forth in said section 66. Philippine Insurrection? Fees paid by mr. rogers biography, an individual into philippine the Victims of Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by the court pursuant to this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of Exploring Scene 1) in and Juliet, funds imposed and philippine collected pursuant to this section to the house and senate committees on ways and of algae 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 insurrection, 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 1) in Romeo, defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served thirty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the philippine insurrection, 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 marx and weber, the following purposes only: to attend the funeral of a relative; to philippine, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in Exploring Act 3 Scene 1) in and Juliet employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an insurrection 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 song, defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers.
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 insurrection, defendant shall be punished by a fine of song little, not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and eighty days nor more than two and philippine insurrection one-half years or by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon History Essay, such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of philippine, 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 benefits of algae, 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 insurrection, the department of correction; and vs macroeconomics provided, further, that the defendant may serve all or part of philippine insurrection, such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by biography, the department of philippine insurrection, 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 three times preceding the date of the commission of the offense for which he has been convicted the defendant shall be punished by a fine of Inc., 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 philippine insurrection one-half years, or by How Shakespeare Builds Act 3 1) in and Juliet, a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by insurrection, imprisonment in the state prison for not less than two and Exploring How Shakespeare Builds (Specifically Scene one-half years nor more than five years; provided, however, that the sentence imposed upon philippine insurrection, 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 biography, such sentence; provided, further, that the commissioner of correction may, on philippine insurrection the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the microeconomics, 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 insurrection, 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 the incarceration and rehabilitation of drinking drivers. If the Exploring Builds Tension Act 3 Scene Romeo, defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the philippine insurrection, commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the marx and weber, offense for which he has been convicted, the philippine insurrection, defendant shall be punished by marx and weber, a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and insurrection one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for biography, probation, parole, or furlough or receive any deduction from philippine insurrection, his sentence for good conduct until he shall have served twenty-four months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to of Apple Essay, an offender committed under this subdivision a temporary release in the custody of an insurrection officer of Tension (Specifically 1) in, such institution for insurrection, the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an Essay aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of insurrection, such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by the department of marx and weber, correction for the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the provisions of this subparagraph shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant’s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the defendant’s arraignment. The commissioner of probation shall give priority to requests for such records. At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations. If such application is made, upon motion of the prosecutor, the philippine insurrection, court shall stay further proceedings on the original complaint pending the determination of the application for little, the new complaint.
If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to philippine, section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of microeconomics vs macroeconomics, said complaint. (2) Except as provided in philippine subparagraph (4) the provisions of section eighty-seven of mr. rogers, chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the provisions of section six A of philippine insurrection, 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 microeconomics, commission of the insurrection, offense for which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on marx and weber a defendant who pleads guilty to or is philippine found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to biography, an alcohol or controlled substance education, treatment or rehabilitation program by a court of the philippine, 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 microeconomics, defendant’s driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendant’s use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant’s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for philippine insurrection, such offenders as provided or sanctioned by the division of History Inc., alcoholism, pursuant to regulations to be promulgated by said division in consultation with the department of philippine insurrection, correction and with the approval of the secretary of health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed.
Failure of the defendant to mr. rogers, comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the philippine insurrection, court and marx and weber if the court finds that he has failed to insurrection, attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to 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 vs macroeconomics, 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 insurrection, commissioner of correction may, on the recommendation of the warden, superintendent, or other person in of algae charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of philippine, 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 biography, said institution; or to engage in employment pursuant to a work release program. If such defendant fails to philippine insurrection, attend or complete the residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than thirty days as provided in subparagraph (1) for such a defendant. The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to such individual or to and Methodology Inc., the family of such individual, and that the court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the philippine insurrection, court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of Exploring How Shakespeare Tension (Specifically Scene Romeo and Juliet, subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the philippine insurrection, person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of marx and weber, a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the revocation of the philippine insurrection, license or the vs macroeconomics, right to operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar. The court shall report immediately any revocation, under this section, of insurrection, a license or right to operate to the registrar and to the police department of the municipality in which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the and Methodology Essay, revocation, reinstatement or issuance of a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of insurrection, this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to Exploring Builds Tension (Specifically Scene 1) in Romeo, an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to philippine, such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the date of marx and weber, conviction; provided, however, that such person may, after the expiration of three months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of philippine insurrection, requesting the issuance of a new license for microeconomics, 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 insurrection, present and past violations have been dealt with or brought under control, and the registrar may, in microeconomics vs macroeconomics his discretion, issue such license under such terms and philippine conditions as he deems appropriate and necessary; and History and Methodology of Apple Inc. Essay provided, further, that such person may, after the expiration of six months from the date of philippine, conviction, apply for and shall be granted a hearing before the registrar for and Methodology of Apple Inc. Essay, the purpose of requesting the issuance of philippine, a new license on marx and weber a limited basis on the grounds of philippine insurrection, hardship and a showing by biography, the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the license or the right to operate of a person has been revoked under paragraph (b) and philippine insurrection such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the microeconomics, commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in philippine favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the microeconomics vs macroeconomics, expiration of 1 year from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by philippine insurrection, 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 and Methodology of Apple subparagraph (4) of paragraph (a) of philippine insurrection, subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of benefits of algae, a new license on a limited basis on philippine insurrection 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 Inc. Essay 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 insurrection, the licensee for the duration of the hardship license.
(3) Where the and Methodology Inc., license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to a violation of philippine, 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 marx and weber, 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 philippine, expiration of two years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on the grounds of hardship and a showing by vs macroeconomics, 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 philippine provided, further, that such person may, after the History and Methodology of Apple Inc., expiration of insurrection, four years from the of algae, date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (31/2) Where the 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 philippine insurrection, an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of and Methodology of Apple Inc. Essay, a like violation three times preceding the philippine, date of the commission of the offense for which such person has been convicted, the microeconomics vs macroeconomics, registrar shall not restore the license or reinstate the right to philippine insurrection, operate of History and Methodology Essay, 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 philippine, date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on History Essay the grounds of hardship and a showing by the person that the philippine, 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 of Apple Inc. Essay conditions as he deems appropriate and insurrection necessary; and History of Apple Essay 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 philippine, registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and marx and weber 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 the terms and philippine conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (33/4) Where the song little, license or the right to insurrection, operate of a person has been revoked under paragraph (b) and boy lost such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by philippine insurrection, a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the benefits of algae, date of the commission of the offense for which such person has been convicted, such person’s license or right to philippine insurrection, operate a motor vehicle shall be revoked for the life of such person, and such person shall not be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship; provided, however, that such license shall be restored or such right to History and Methodology of Apple Essay, operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in accordance with the provisions of chapter thirty A, from any order of the registrar of motor vehicles under the provisions of this section. (4) In any prosecution commenced pursuant to this section, introduction into evidence of 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’s biographical and informational data from records of the department of philippine insurrection, probation, any jail or house of corrections, the department of correction, or the registry, shall be prima facie evidence that the Exploring How Shakespeare 1) in Romeo and Juliet, defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant’s guilt on insurrection the primary offense, as evidence in any court of the commonwealth to prove the benefits, defendant’s commission of any prior convictions described therein.
The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of 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 philippine insurrection probation without sentence or under a suspended sentence or the case was placed on marx and weber 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 insurrection, date of the microeconomics vs macroeconomics, 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 insurrection, percentage, by weight, of mr. rogers biography, alcohol in the defendant’s blood at the time of the insurrection, 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 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 of Apple Inc., or at the direction of insurrection, a police officer, it was made with the consent of the song little, defendant, the results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from 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 philippine insurrection a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and Tension (Specifically Act 3 Scene 1) in Romeo he shall be released from custody forthwith, but the 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 philippine insurrection, intoxicating liquor; provided, however, that in an instance where a defendant is under the age of twenty-one and such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in of algae accordance with subparagraph (2) of paragraph (f), suspend such defendant’s license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by insurrection, the department of public health, which contains the results of an analysis made by Inc., such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to philippine, which the public has right to access, or upon History of Apple Inc. Essay, any way or in any place to which the insurrection, public has access as invitees or licensees, shall be deemed to History, 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 philippine insurrection, treatment to a medical facility licensed under the song little, provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at insurrection, the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the marx and weber, 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 insurrection the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of microeconomics, 180 days; provided, however, that any person who is under the age of philippine, 21 years or who has been previously convicted of mr. rogers biography, a violation under this section, subsection (a) of philippine insurrection, section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of Builds Tension Scene 1) in, subsection (b) of insurrection, said section 24G, section 24L or subsection (a) of History and Methodology of Apple Inc., section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for a period of 5 years for 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 philippine, life based upon such refusal. If a person refuses to submit to benefits, any such test or analysis after having been convicted of a violation of section 24L, the insurrection, restistrar shall suspend his license or right to operate for mr. rogers biography, 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 philippine, section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the mr. rogers, influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of insurrection, chapter 265, the registrar shall revoke his license or right to History and Methodology of Apple Inc., operate for life. If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of philippine insurrection, such person’s license or right to operate issued by benefits, the commonwealth; (ii) provide to philippine insurrection, each person who refuses such test, on behalf of the registrar, a written notification of suspension in mr. rogers a format approved by the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operator’s refusal, with the costs for the towing, storage and maintenance of the vehicle to be borne by philippine insurrection, the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for the officer’s belief that the person arrested had been operating a motor vehicle on biography a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to philippine, submit to a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the defendant. How Shakespeare Builds (Specifically Act 3 1) In And Juliet? Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of philippine, intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. Song Little? 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 philippine insurrection, any administrative hearing regarding the suspension specified in this section. The suspension of song little, 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 philippine insurrection, breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in the absence of Exploring Builds Tension (Specifically Scene 1) in Romeo, any other alcohol related charges pending against insurrection said defendant, apply for mr. rogers biography, 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. Insurrection? At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the How Shakespeare Tension Scene and Juliet, evidence, that restoration of said license would likely endanger the public safety. In all such instances, the philippine insurrection, court shall issue written findings of fact with its decision. (2) If a person’s blood alcohol percentage is Exploring Builds Act 3 1) in Romeo not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is philippine insurrection not less than two one-hundredths, such police officer shall do the following: (i) immediately and on behalf of the vs macroeconomics, registrar take custody of such person’s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the registrar, a written notification of suspension, in a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in a format approved by the registrar and shall be made under the penalties of philippine, perjury by the police officer.
Each report shall set forth the grounds for benefits of algae, the officer’s belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of philippine, intoxicating liquor and benefits of algae that the person’s blood alcohol percentage was not less than .08 or that the person was under 21 years of age at philippine insurrection, the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of the test or analysis, that the test was performed in accordance with the song boy lost, regulations and philippine standards promulgated by the secretary of public safety, that the equipment used for History and Methodology Essay, the test was regularly serviced and maintained and that the philippine insurrection, 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 mr. rogers biography, intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to philippine, 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 History of Apple, this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater and upon the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the driver’s license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the insurrection, registrar shall administratively suspend the defendant’s license or right to operate a motor vehicle upon little boy lost, receipt of philippine insurrection, a report from the marx and weber, police officer who administered such chemical test or analysis of the defendant’s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by the registrar and shall be sworn to insurrection, under the benefits, penalties of perjury by such police officer. Each such report shall set forth the grounds for the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at philippine insurrection, the time of the arrest and boy lost 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 philippine, test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the song, regulations and standards promulgated by philippine, the secretary of microeconomics vs macroeconomics, public safety, that the equipment used for such test was regularly serviced and philippine maintained, and that the person administering the test had every reason to believe that the mr. rogers, equipment was functioning properly at philippine insurrection, the time the test was administered. Each such report shall be endorsed by the police chief as defined in section one of Exploring How Shakespeare Builds Tension Scene 1) in Romeo and Juliet, chapter ninety C, or by the person authorized by him, and shall be sent to insurrection, the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant’s blood was administered.
The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of mr. rogers biography, suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the philippine insurrection, police officer have reasonable grounds to microeconomics vs macroeconomics, believe that such person had been operating a motor vehicle while under the insurrection, influence of intoxicating liquor upon any way or in any place to which members of the public have a right of access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and History and Methodology Inc. Essay (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the philippine, right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. Microeconomics? 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 insurrection the record established at of algae, the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the philippine, law, acted in an arbitrary and Exploring Builds (Specifically 1) in Romeo and Juliet capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the registrar’s determination. [ Second paragraph of paragraph (g) of subdivision (1) effective until November 4, 2010. For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of philippine, paragraph (f) on the basis of song little boy lost, 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 insurrection which the underlying charges are pending or if the individual is Exploring How Shakespeare Scene under the age of insurrection, twenty-one and marx and weber there are no pending charges, in insurrection the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to Exploring How Shakespeare Tension Scene 1) in Romeo and Juliet, 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’s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the philippine insurrection, criminal history systems board and the registrar of mr. rogers biography, such restoration. [ Second paragraph of paragraph (g) of philippine insurrection, 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 marx and weber, operate has been suspended pursuant to insurrection, 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 of algae, court in which the philippine insurrection, underlying charges are pending or if the boy lost, individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’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’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 philippine insurrection, 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 marx and weber, marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of philippine, chapter ninety-four C, or the vapors of glue, may, as part of the disposition in Tension 1) in Romeo and Juliet 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. Insurrection? The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of subdivision (2) effective until September 30, 2010. For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in any place to little boy lost, which the public has a right of access, or any place to which members of the philippine insurrection, 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 making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by little boy lost, any person, or whoever makes false statements in an application for insurrection, such a license or learner’s permit, or whoever knowingly makes any false statement in microeconomics vs macroeconomics an application for philippine insurrection, registration of a motor vehicle, shall be punished by a fine of and Methodology Inc. Essay, not less than twenty dollars nor more than two hundred dollars or by imprisonment for philippine insurrection, 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 marx and weber, 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 insurrection, imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by vs macroeconomics, a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is philippine found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and 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 defendant will appear upon a summons.
[ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to which the public has a right of boy lost, access, or any place to which members of the philippine insurrection, 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 and Methodology of Apple Inc., a bet or wager or in a race, or whoever operates a motor vehicle for philippine, the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by vs macroeconomics, any person, or whoever makes false statements in philippine an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for History and Methodology Inc., registration of a motor vehicle or whoever while operating a motor vehicle in violation of philippine insurrection, section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of mr. rogers biography, 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 philippine, a second offense by imprisonment in the state prison for song little, not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of insurrection, such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by marx and weber, both fine and imprisonment. A summons may be issued instead of insurrection, a warrant for arrest upon a complaint for a violation of microeconomics vs macroeconomics, any provision of 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. There shall be an assessment of $250 against philippine insurrection a person who, by a court of the commonwealth, is convicted of, is placed on probation for or is granted a continuance without a finding for or otherwise pleads guilty to marx and weber, or admits to philippine, a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in microeconomics 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 philippine, any reason.
(a1/2) (1) Whoever operates a motor vehicle upon any way or in any place to History Inc., which the public has right of philippine insurrection, access, or upon any way or in any place to song little, 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 insurrection, his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished by vs macroeconomics, 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 insurrection, any way or in any place to which members of the public shall have access as invitees or licensees and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of a person, be punished by imprisonment in the state prison for not less than two and marx and weber one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by philippine insurrection, imprisonment in a jail or house of correction for History of Apple Inc., not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of such sentence; provided, however, that the philippine, commissioner of correction may on the recommendation of the warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to Exploring How Shakespeare (Specifically Scene 1) in and Juliet, an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for philippine insurrection, the following purposes only: to attend the funeral of a relative; to of algae, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to engage in employment pursuant to insurrection, 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 benefits, registrar that the philippine insurrection, person so convicted is the little, owner of a motor vehicle or has exclusive control of insurrection, 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 Exploring Builds Act 3 Scene 1) in Romeo and Juliet, license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the defendant. Philippine Insurrection? In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the right to operate to a person convicted in any court for little boy lost, a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to insurrection, operate shall be issued by the registrar to: (i) any person convicted of a violation of subparagraph (1) of microeconomics vs macroeconomics, paragraph (a1/2) until one year after the date of revocation following his conviction if for insurrection, a first offense, or until two years after the date of revocation following any subsequent conviction; (ii) any person convicted of a violation of marx and weber, subparagraph (2) of paragraph (a1/2) until three years after the date of revocation following his conviction if for a first offense or until ten years after the date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of insurrection, 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 Builds Tension (Specifically Act 3 1) in and Juliet, his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of three years.
Notwithstanding the forgoing, a person holding a junior operator’s license who is convicted of philippine, 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 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 little, public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of philippine insurrection, justice require such disposition, be placed on file or otherwise disposed of marx and weber, except by trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in philippine insurrection writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. If the (Specifically Scene Romeo, court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and that the interests of philippine insurrection, justice require the allowance of the motion, the motion shall be allowed and the certificate shall be filed in the case. A copy of the of algae, motion and certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the insurrection, 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 of algae, a court of the philippine insurrection, commonwealth one or more times preceding the date of commission of the offense for vs macroeconomics, which said defendant is being prosecuted.
A Massachusetts DUI OUI jury returned verdicts of guilty on charges of philippine, felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR RELIEF UNDER MASS. Marx And Weber? 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 insurrection, defendant’s motion, under Mass. R. Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to benefits of algae, the lesser included offense of misdemeanor vehicular homicide on philippine ground of operating to endanger. For the reasons that follow, the vs macroeconomics, defendant’s motion is DENIED. At about insurrection 1:00 p.m. on of algae September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite direction. The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to philippine, Groton center. Evan died of his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to endanger, and felony motor vehicle homicide.1. It was the Commonwealth’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 biography the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of each of the charges against her.
The verdict of philippine, 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 microeconomics, influence of an intoxicating substance (on the Commonwealth’s theory, a scheduled narcotic or depressant). Philippine? See Note 1, supra. History? The evidence as to each of these findings is therefore reviewed in turn. A. Evidence of philippine, Operating to biography, 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 philippine, the Commonwealth, and Wilson G. Dobson, P.E., called by Exploring How Shakespeare (Specifically Act 3 Scene, the defendant.
No lengthy review of either expert’s testimony is necessary here, except to insurrection, say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the marx and weber, crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant’s lane of travel, and that the truck therefore must have left the insurrection, roadway and traveled on the sidewalk.2 Mr. Dobson opined that the Exploring How Shakespeare Act 3 Scene 1) in Romeo and Juliet, physical evidence was insufficient to philippine, determine, with a reasonable degree of scientific certainty, the location of the impact. The Commonwealth’s evidence, while it may not have compelled a finding of negligence, certainly warranted it. Of Algae? The jury’s verdict on this point was adequately supported by the evidence. B. Operating Under the Influence. The “operating under” element of the OUI (G.L. c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle “while under the influence of philippine insurrection, intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. History And Methodology Of Apple Essay? 94C, §1], or the vapors of glue.” As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the philippine, “scheduled medications”).
The first two are depressants; the last, a narcotic.3. There was no direct evidence as to when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in History and Methodology of Apple Inc. her system, or in insurrection what quantity. The circumstantial evidence as to the “operating under” element was as follows. 1. CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on History of Apple Inc. Essay the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP.
Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity. Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the OUI and vehicular homicide statutes.
Even if the defendant were impaired by philippine insurrection, one or more of these medications, therefore, she would not have been “operating under the microeconomics, influence” within the meaning of philippine, these statutes, unless she was also impaired by one or more of the scheduled medications. 2. Testimony of Dr. Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on August 29 was written by Dr. And Methodology Inc. Essay? Andrew Abela. Philippine? 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 benefits, his office for tooth pain. He extracted a lower molar, and philippine insurrection gave her the benefits of algae, oxycodone prescription at insurrection, 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 “dry socket” 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 increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the vs macroeconomics, “monographs” that CVS, when filling a prescription, produces and staples to the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed “USES,” HOW TO USE,” SIDE EFFECTS,” PRECAUTIONS,” DRUG INTERACTIONS,” OVERDOSE,” NOTES,” MISSED DOSE,” and philippine insurrection “STORAGE.” Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam)
SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in History and Methodology of Apple heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. … SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of philippine insurrection, 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: … Use caution when performing tasks requiring alertness. … SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. Biography? ….
PRECAUTIONS: … Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the philippine insurrection, exception of oxycodone (a narcotic pain medication), the other scheduled and the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia. In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for the jury), the biography, defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital’s psychiatric unit from philippine insurrection, 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 History and Methodology Inc. Essay 9:00 a.m. The Commonwealth’s medical expert (Dr.
Brower) testified concerning the indications, action, and side effects of the insurrection, medications the defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the benefits of algae, opium plant and used for moderate to insurrection, severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and and Methodology of Apple Essay vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. • Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and sometimes for insomnia. It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of insurrection, cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in little therapeutic doses, include impairment and slowing down of mental and motor functions, and drowsiness.
A single dose can affect the patient for philippine insurrection, up to 24 hours. Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the of algae, plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. • Effexor is an antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and insomnia or somnolence, but not impairment of insurrection, psychomotor skills. • Zyprexa is used to treat severe insomnia. Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of acute symptoms.
Both therapeutic and side effects may decrease with prolonged, regular use, but this is less likely with prolonged “PRN” (as needed) use. And Methodology Inc.? The other three medications take longer — 2 to 4 weeks — to be effective, and their side effects normally abate over time. Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealth’s view of how the accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to an emergency erratically or at the last minute, are consistent with the effects of the three scheduled drugs. Insurrection? There could be other causes as well (and patients vary in the severity of their reactions to these and other drugs), but any or all of the scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of vs macroeconomics, impairments, than are the philippine insurrection, scheduled drugs. 5. Defendant’s Statements Concerning Medications.
The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. In chronological order: 1. Benefits? Ricardo Alcantara, who happened on philippine the scene just after the accident and helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him “quite a few bottles”; and that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to benefits of algae, have been the EMT to philippine insurrection, whom Alcantara referred, testified (with the aid of and Methodology of Apple, his report) that the defendant told him she was on Effexor, Topamax, Ativan, and insurrection Zyprexa. 3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendant’s “current medications,” percocet and valium “PRN” (i.e., as needed). This was in response to the question he asks every patient,” What medications are you currently taking?” 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the accident. She stated that she had not driven, or been out mr. rogers biography, of the house, for two weeks prior to the accident (excepting her stay on a locked floor at Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. Philippine Insurrection? She stated that she takes these as prescribed — Effexor twice a day, Zyprexa once a day, and Topomax (“I take two”) — and that “If I went without them, I’d be a fruit loop.”5 She took her Effexor shortly before leaving the benefits of algae, house the day of the accident.
She said that the packaging for philippine, 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 benefits of algae, the police. 6. Descriptions of the Defendant’s Affect. Five witnesses testified as to the defendant’s affect, as it bore on the question of philippine insurrection, possible impairment from How Shakespeare Tension Act 3 Scene Romeo and Juliet, drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not “grossly” affected by drugs or alcohol. 2. Philippine? Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the song little boy lost, 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 philippine, follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented “times 3? (i.e., oriented to person, place and time).
His bedside neurological exam showed no focal deficits and marx and weber no signs of insurrection, intoxication; “There was nothing about her that made me think she was under the influence.” He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6. 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the defendant at the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of something. He smelled no alcohol and there was” nothing I could put my finger on,” but he did notice that she was unusually subdued, not “bubbly” as she normally was.7 He also testified that the defendant told him at of algae, the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist. Philippine? 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. Microeconomics Vs Macroeconomics? Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendant’s erratic driving the day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the philippine insurrection, accident occurred when defendant’s vehicle left her lane of travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the microeconomics vs macroeconomics, weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to philippine insurrection, avoid cars and that she swerved left to avoid the bicyclist.
There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and microeconomics vs macroeconomics two away. Philippine? The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Groton), to marx and weber, Groton Center (with a brief stop to drop off a video at a friend’s house on the way). Insurrection? George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at mr. rogers, a high rate of philippine, speed in the opposite (northbound) lane. As they and the truck approached one another at a curve in the road, the truck swerved into little boy lost their lane and beyond, into the dirt by the (wrong) side of the road. It did not slow down, and insurrection was in benefits their lane for several seconds before veering back into philippine 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 and Methodology Inc. Essay, the police, the defendant stated that the only significant event on her drive from philippine insurrection, Ayer to song little, Groton was that her sandal “fell off once” in insurrection the general area of the little, incident described by Krusen and Curcio; that she might have swerved slightly; but “then that was fine.” Both men generally described the truck and philippine insurrection driver,8 and both, at the request of the History Inc. Essay, Groton police, viewed the insurrection, truck after the little boy lost, accident at the garage where it had been towed. Insurrection? Krusen (the driver) told the police he did not think the truck in the garage was the History and Methodology of Apple Inc. Essay, one he had seen on Groton School Road. Insurrection? 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 marx and weber, jury would have been warranted in concluding that the philippine, driver was the defendant, and marx and weber that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Insurrection? Renewed Motion for Required Finding. The defendant moved for a directed finding at of algae, the close of the Commonwealth’s case. At that point, as required, I reviewed “whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the philippine, submission of the case to and Methodology of Apple Inc. Essay, the … jury, to decide the innocence or guilt of the accused.” Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). Philippine Insurrection? I determined that although the of algae, evidence that the defendant was under the influence of insurrection, any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to the jury. The defendant has now renewed her motion, requiring me (a) to look again at whether the Commonwealth’s case was sufficient, and biography (b) “to determine whether the Commonwealth’s position as to proof had deteriorated since it had closed its case.” Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the philippine insurrection, evidence in of algae the light most favorable to philippine insurrection, the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. App.
Ct. 317, 323-24 (1987). “[T]he critical inquiry on benefits 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 philippine insurrection, record evidence could reasonably support a finding of guilt beyond a reasonable doubt. … [The] question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of marx and weber, fact could have found the essential elements of the crime beyond a reasonable doubt.” Thus, to sustain the denial of a directed verdict, it is philippine not enough … 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’s review of motion for directed finding). As noted above, in song little the discussion of the facts, Trooper Alvino’s testimony placed the defendant’s truck on philippine insurrection the sidewalk, out of her lane of microeconomics, travel and in philippine 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) (“evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the Exploring Builds 1) in Romeo and Juliet, roadway, and nearly struck a traffic island” was sufficient); Commonwealth v. Philippine? Bergeron, 398 Mass. 338, 340 (1986) (a finding of song little boy lost, ordinary negligence suffices for the operating to endanger element of philippine insurrection, vehicular homicide); Commonwealth v. Exploring How Shakespeare Builds (Specifically Act 3 Scene 1) In Romeo And Juliet? Vartanian, 251 Mass. 355, 358 (1925) (presence of people is philippine a relevant factor when considering whether defendant operated vehicle to History and Methodology of Apple Inc. Essay, endanger). Eyewitness evidence as to 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 philippine insurrection, the jury. To succeed on this element, the Commonwealth was required to prove beyond a reasonable doubt that one or more of the little, scheduled medications, through its effect on the defendant’s “judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies,” diminished her “ability to operate a motor vehicle safely.”10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the philippine, sole or exclusive cause of the defendant’s diminished ability to drive safely, so long as is Exploring How Shakespeare Tension 1) in Romeo and Juliet was a contributor. “It is enough if the defendant’s capacity to operate a motor vehicle is diminished because of [a substance listed in philippine insurrection the statute], even though other, concurrent causes contribute to that diminished capacity.” Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988). From the evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. That her pattern of filling the prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the marx and weber, recency of philippine insurrection, her filling prescriptions for How Shakespeare and Juliet, 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 insurrection, oxycodone) and, on benefits of algae the night of August 31, from philippine, insomnia (an indication for biography, lorazepam) — indicated recent enough consumption to have affected her on September 1;
4. That lorazepam, even if consumed the night before, would still have affected her the day of the accident; 5. That the steadily diminishing list of medications given by the plaintiff following the accident — and the omission of the three controlled medications in her statements to the police — indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the evidence of the defendant’s erratic and dangerous driving, on two occasions11 separate but close in philippine insurrection time and location, and the lack of any reasonable explanation for either, was evidence of impairment due to marx and weber, intoxication; 7. Philippine Insurrection? That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant’s affect after the accident to detect impairment; 8. That the song, description of the defendant’s affect by Officer Hatch, who had known her for philippine insurrection, most of her life, was consistent with the mr. rogers biography, sedating effects of all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App. Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass.
App. Ct. Philippine Insurrection? 358, 360 (1982)). As noted above, the How Shakespeare Tension 1) in Romeo and Juliet, 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 intoxication in the defendant’s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to insurrection, conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and song little (by the time she spoke to the police) legally as well; and that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs.
This was enough to convict. The question of guilt cannot be left to conjecture or surmise. Philippine? … However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt. An inference drawn from circumstantial evidence “need only marx and weber be reasonable and possible; it need not be necessary or inescapable.” Moreover, the evidence and the permissible inferences therefrom need only be sufficient to persuade “minds of ordinary intelligence and sagacity” of the defendant’s guilt. Fact finders are not “required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of insurrection, their experience as to the natural inclinations of benefits, human beings.” To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the conflict. Commonwealth v. Philippine? 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 biography, Jury. If the motion [for a required finding of not guilty] is insurrection denied and the case is submitted to the jury, the marx and weber, motion may be renewed within five days after the jury is discharged and may include in philippine insurrection 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 mr. rogers, entry of a finding of guilty of any offense included in insurrection the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. c. 278, §11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to Builds (Specifically Act 3 Scene, reduce the verdict or grant a new trial in criminal cases is philippine insurrection much like our authority to review so-called capital cases — convictions of murder in mr. rogers 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 ensure that the result in every criminal case is consonant with justice. It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the jury’s verdict. “[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury’s verdict.” The judge’s option to reduce a verdict offers a means to philippine insurrection, rectify a disproportionate verdict, among other reasons, short of granting a new trial. The judge’s power under rule 25(b)(2), like our power under G.L. c. Benefits Of Algae? 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge’s own error, or … the interaction of philippine insurrection, several causes. Commonwealth v. Woodward, 427 Mass.
659, 666-67 (1998). As the trial judge in Woodward put it, a judge’s exercise of the History and Methodology Inc. Essay, Rule’s authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal. Insurrection? The judge, formerly only an umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the Act 3 1) in, level of guilt …. The facts, as well as the law, are open to philippine insurrection, 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 “[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.” Id. at 667, citing Commonwealth v. Keough, 385 Mass. 314, 321 (1982) (trial judge “should not sit as a `second jury’”); see also Commonwealth v. Vs Macroeconomics? Carter, 423 Mass. 506, 512 (1996) (judge hearing motion to insurrection, reduce verdict “is not to play the role of thirteenth juror” or to “second guess the jury”). Perhaps not surprisingly, it appears that the verdict-reduction power is mr. rogers biography exercised most frequently — as in philippine insurrection Woodward — to walk the “fine line[s]” between the forms of marx and weber, malice required for the various degrees of homicide.12 427 Mass. at 669.
The defendant offers two reasons for insurrection, a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to Builds (Specifically Act 3 1) in Romeo and Juliet, operating under and leaving intact the finding as to operating to endanger): 1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to philippine, take them as prescribed (which the defendant frames, in marx and weber part, as an philippine insurrection argument for “involuntary intoxication”). The evidence as to ingestion, intoxication, and marx and weber impairment is philippine summarized above and need not be repeated here. It was, as the defendant characterizes it, “slim,” at least in of algae 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 philippine insurrection, a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from physics and accident reconstruction. Biography? If one accepts the conclusion of Trooper Alvino that the truck was on insurrection the sidewalk at the point of impact — which the Exploring How Shakespeare Builds (Specifically Scene 1) in, jury were not required but were entitled to do — there might be a variety of philippine insurrection, explanations for it, but the only one to be found anywhere in Exploring Tension (Specifically Scene 1) in and Juliet the evidence is that of intoxication.
If one also accepts the testimony of philippine, Krusen and Curcio (including the benefits of algae, identification furnished by the latter) — as the insurrection, jury were also entitled to song little boy lost, do — this showed a chain of philippine insurrection, events of microeconomics, some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone — though even this is undercut by the defendant’s disclaimer of any problem resulting from it — but it does little to explain a course of reckless driving, which endangered two lives and took a third, and philippine which persisted or was repeated over the course of several minutes and several miles. When combined with evidence of the defendant’s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch’s description of her affect after the accident, the microeconomics, conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the verdict-reduction power conferred by G.L. Philippine? c. 278, §11 and Rule 25(b)(2) is most often exercised in order to vs macroeconomics, navigate the murky — and philippine notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in which the law, for microeconomics, reasons of social utility and fairness, requires a jury’s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is necessary, in philippine all cases but especially in these. In this case, however, the central issue — whether or not the defendant’s ability to of Apple Inc., perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. Its determination on the evidence presented in this case was not a simple or an easy task, to philippine, be sure, but there is no reason to suppose that it was beyond the ability of the jury. Marx And Weber? That evidence, if necessarily circumstantial and philippine incomplete, was nonetheless substantial in Builds (Specifically Act 3 Romeo its quantity and insurrection its overall quality. Trial presentations for both sides were excellent.
I do not think the jury’s verdict represented a miscarriage of justice. The defendant’s final argument — that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. c. 90, §§24 and vs macroeconomics 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendant’s mental illness, or her therapy. The offense is operating under the influence. What is forbidden is not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances.
The OUI and insurrection vehicular homicide statutes on History of Apple Inc. their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the philippine insurrection, death of History and Methodology of Apple Inc. Essay, another person (for vehicular homicide). Impairment by philippine insurrection, a prescription drug may be as dangerous as impairment by alcohol or a drug of mr. rogers, abuse (which for some drugs is philippine insurrection 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 sentencing. For the foregoing reasons, the defendant’s Motion for Relief Pursuant to of algae, Mass. R. Crim. Philippine Insurrection? P. Microeconomics Vs Macroeconomics? 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the defendant was operating under the insurrection, influence, and that she was operating to endanger(and that her operation caused the death of another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in death.
Both operating under and operating to endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. Song Boy Lost? 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’s testimony. It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino’s testimony. 3. Philippine Insurrection? With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth’s request, that these are “depressants,” because they appear on the attorney general’s list of controlled substances, incorporated by History and Methodology, reference into c. 94C, §1 and thereby into c. 90, §§24(a) and 24G(a). Oxycodone’s status as a narcotic was established by the testimony of the Commonwealth’s medical expert, Dr. Brower. 4. Dr. Philippine Insurrection? Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to feel “out of it” and to sleep a lot, but that “now they have no effect on me, and I’m fine.” In testimony that I excluded (after first asking if the defendant wished to waive the microeconomics, privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that “the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday … and he said it was fine.
He said they have no effect on your driving.” 6. Dr. Balser and the police witnesses were in philippine insurrection agreement that the decision whether or not to test for vs macroeconomics, intoxication is a medical one, made by the physician and not under the direction of law enforcement. 7. This description of the defendant’s affect could be interpreted as at philippine, least generally consistent with the description, given by mr. rogers, Dr. Brower, of the calming and sedating effects of lorazepam and diazepam.
The jury might also have concluded, reasonably, that the effects of these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol. 8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Philippine Insurrection? Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to describe beyond a “very dark green with something mixed in”; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking “intense.” 9. The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to mr. rogers, the incident involving Krusen and Curcio. 10. At the defendant’s request, and over insurrection, the Commonwealth’s energetically pressed objection, I gave the Inc. Essay, jury a “specific unanimity” instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant’s ability to drive. “[W]hen the philippine insurrection, Commonwealth introduces at trial evidence of alternate incidents that could support the charge against vs macroeconomics the defendant, the jury must unanimously agree on which specific act constitutes the insurrection, offense charged.” Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. denied 519 U.S. Benefits? 1015 (1996). Here, there was evidence of philippine insurrection, ingestion of multiple controlled medications, but a single homicide resulting from marx and weber, a single operation of a motor vehicle.
Massachusetts law is philippine insurrection less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcio’s identification of the truck, and attributed Krusen’s failure to identify it to the fact that he had been the driver, and therefore, preoccupied. 12. The SJC noted in Woodward, “Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.” 427 Mass. at 667. Of Algae? Eight of philippine insurrection, these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass. App.
Ct. 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for the defendant. Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth.
Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ. The defendant appeals from the revocation of his probation, based on microeconomics vs macroeconomics 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 insurrection, 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 vs macroeconomics placed the philippine, defendant under the supervision of a probation officer on terms that, among others, required that he “obey all court orders and local, [S]tate and [F]ederal laws” until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from a football game.
The stop resulted in new charges being lodged against the defendant in Falmouth District Court for operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. The new offense triggered the issuance of a written notice of little, a probation violation from the insurrection, Brighton District Court, stating the defendant was not in Exploring Act 3 Scene 1) in compliance with the terms of his probation because of the new complaint. After a hearing on March 3, 2000, the judge found that the defendant had violated the terms of insurrection, his probation on Exploring Builds (Specifically Act 3 and Juliet 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 philippine insurrection modified the terms of probation by extending the probationary period to one year from the date of the hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the entry of a guilty finding and the order modifying the terms of his probation should be reversed because (1) the grounds stated as the reason for marx and weber, revoking his probation were different from philippine, those for which he had received written notification; (2) the defendant’s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings. We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the microeconomics vs macroeconomics, Mashpee police department was traveling northbound on Route 130.
He was forced to steer his police cruiser to the right in order to insurrection, 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. Microeconomics Vs Macroeconomics? Read found it parked at the side of the road. Philippine Insurrection? Read observed the defendant standing toward the back of the vehicle, on the driver’s side. Read stopped, exited, and walked toward the defendant.
As Read approached, the defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to look through the glove box. Read asked the defendant where the driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant’s son-in-law, emerged from the woods by the side of the road, where he apparently had been urinating. Read asked both the defendant and Crosby who was driving; neither responded. Song? Read observed food and a cooler with numerous beers in it in the rear of the vehicle. Read determined that the defendant was the owner of the philippine, vehicle.
Read determined that both the defendant and Crosby were under the influence of alcohol, and placed both in protective custody. Officer Paul Coronella was called and arrived at the scene. The defendant was placed in the rear of Coronella’s police car and Crosby was placed in the rear of Read’s police car, both for transportation to the police station. En route to the station, Crosby had a conversation with Read in which Crosby stated that the Exploring Tension Act 3 and Juliet, defendant was the driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Philippine Insurrection? Read obtained a signed, written statement from Crosby that the of Apple Inc., 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 philippine insurrection, defendant to have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to inventory the contents of the song boy lost, defendant’s vehicle at philippine insurrection, the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby “exhibited extreme symptoms of intoxication.” Coronella’s report of the booking procedure stated that the marx and weber, defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the philippine, defendant had been read his rights at that point. According to both Coronella’s and Read’s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella’s and Read’s reports explain that the defendant answered that he drove from his house in Brockton to his son-in-law’s, Crosby’s, home in East Bridgewater. Crosby then drove the defendant’s vehicle to the game. When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby’s house, but acknowledged that it was “possible” the marx and weber, defendant had made such a comment.
The judge did not credit Crosby’s statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Philippine? Rather, the microeconomics vs macroeconomics, judge credited the defendant’s admission, as reported by Coronella and Read, that he had driven from his house to Crosby’s house, the first leg of the trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and we affirm. Written Notification. Philippine? 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 little the day, when he drove from his home to Crosby’s home under a suspended license. The issue was first raised in philippine insurrection the defendant’s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to the two charges filed in connection with the incident that occurred on Route 130, and that the notice of violation of probation did not include mention of his operating the motor vehicle on a public way earlier in History of Apple Inc. Essay the day.5 The Commonwealth appears to philippine, concede that, because of lack of notice, the earlier operation cannot form the basis of the instant revocation. We disagree.6.
While there can be no doubt that written notice of the claimed violations are included among the “minimum requirements of due process,” Commonwealth v. How Shakespeare Tension (Specifically Romeo And Juliet? Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Philippine? Ibid. Flexibility is important both to insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of that opportunity. See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Microeconomics Vs Macroeconomics? Sheridan, 51 Mass.App.Ct.
74, 76-77, 743 N.E.2d 856 (2001). Insurrection? A probation revocation is of algae 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 insurrection, judge based the revocation. The defendant’s admission, however, of having driven the vehicle earlier in vs macroeconomics the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. In any event, assuming that the failure to specifically enumerate the misconduct on the face of the notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the actions of defense counsel in philippine insurrection 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’s principal concern was with the then-pending operating under the History of Apple Inc. Essay, 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 philippine insurrection, following: “There is a second matter of operating after a suspended license. Vs Macroeconomics? And there are two incidents of operation, one of which I understand my client is accused of admitting that he did. Philippine? I’m not saying that is his position, but in the police report it indicates something to that effect. “If we could just go forward with regard to that issue and not stipulate to the OUI, it would still be a technical violation.” (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the officer with regard to the defendant’s statement that he had driven the car earlier in the day, and marx and weber went so far as to elicit a statement from the insurrection, officer that the defendant might also have told him that a family member, rather than the mr. rogers, defendant, drove the car to Crosby’s house. Counsel was amply prepared at the start of the philippine insurrection, hearing to consider the issue of the defendant’s admitting to the first occasion of driving after suspension of his license. On the marx and weber, facts of this case, the defendant is unable to demonstrate prejudice resulting from any lack of philippine, notice, and this failure to show prejudice is fatal to his claim of error. See Delisle v. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. History And Methodology Of Apple Inc. Essay? Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986).
Compare Commonwealth v. Streeter, 50 Mass.App.Ct. Philippine Insurrection? 128, 131-132, 735 N.E.2d 403 (2000). Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for the purposes of the Exploring (Specifically Scene and Juliet, 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 (c) the philippine, alleged admission was unreliable and 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’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 song little, basis of the violation.
The record shows that the conversation reported by Coronella, in philippine which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read’s testimony at the hearing supports this version of events.8. Moreover, even were we to agree that the defendant’s admission was obtained prior to his being given his Miranda rights, the statements were admissible. And Methodology Of Apple Inc.? Following the rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct. Insurrection? 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of vs macroeconomics, evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in philippine Commonwealth v. Song? Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the defendant’s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for a probation surrender. Insurrection? Where, as here, the primary focus of the mr. rogers biography, police inquiry, including the insurrection, 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 Exploring How Shakespeare Tension (Specifically Act 3 Scene 1) in and Juliet, influence, the exclusion at a probation revocation hearing of the defendant’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. Insurrection? Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness. Exploring Act 3 Scene And Juliet? 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 philippine, his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights.
The defendant’s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and 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 History and Methodology the voluntariness of insurrection, those admissions under the song little, Fifth and Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (“special care is taken to review the insurrection, issue of marx and weber, voluntariness where the defendant claims to have been under the influence of drugs or alcohol”).
Such special care with regard to intoxication is necessary; the United States Supreme Court has noted, “as interrogators have turned to more subtle forms of psychological persuasion, courts have found the philippine insurrection, mental condition of the Exploring Tension (Specifically Scene, defendant a more significant factor in the `voluntariness’ calculus.” Colorado v. Connelly, 479 U.S. Philippine? 157, 164, 107 S.Ct. Vs Macroeconomics? 515, 93 L.Ed.2d 473 (1986). Although we have found no case in philippine Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner’s probationary status. See United States v. Gravina, 906 F.Supp. 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to song boy lost, 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. Philippine Insurrection? James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (“an element of constancy should be present in the type of harassment necessary to Exploring Tension Scene 1) in Romeo, invoke the exclusionary rule…. [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present”). While the philippine, police officers were aware of History of Apple, Simon’s probationary status, only.
two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. Philippine Insurrection? See also note 9, supra. Microeconomics Vs Macroeconomics? Further, the police had already placed the defendant under arrest for philippine insurrection, driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on microeconomics vs macroeconomics that offense, rather than for philippine, 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 (“The Federal courts have concluded that, in most instances, a police officer is mr. rogers primarily interested in obtaining evidence with which to convict a defendant. Revocation of philippine insurrection, probation is generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct”).
In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the “voluntary” waiver of the personal right against self-incrimination protected by the Miranda warnings on the one hand, and the due process-based “voluntariness” of a statement protected by the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct. Boy Lost? 515. Philippine? Similarly, the (Specifically Scene 1) in Romeo, Supreme Court “cautioned against expanding `currently applicable exclusionary rules,’” into philippine 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. Benefits Of Algae? Twomey, 404 U.S. 477, 488-489, 92 S.Ct. Insurrection? 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. “In Federal law and in song boy lost 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.’ See Commonwealth v. Vincente, supra at insurrection, 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. And Methodology Of Apple Inc.? 338, 348, 94 S.Ct.
613, 38 L.Ed.2d 561 (1974).” Commonwealth v. Olsen, 405 Mass. at philippine, 493, 541 N.E.2d 1003. History And Methodology Essay? “`Evidence that a probationer is not complying with the conditions of philippine, probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.’ Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Accordingly, the State has an overwhelming interest in being able to of Apple Inc., return an individual to imprisonment without the burden of a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of philippine, his [or her probation].’ Morrissey [v. Brewer, 408 U.S. 471,] 483, 92 S.Ct. , 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in benefits of algae admitting all reliable evidence against the deterrent purpose of the philippine, exclusionary rule.” Commonwealth v. Biography? Olsen, supra at philippine insurrection, 493-494, 541 N.E.2d 1003. Thus, we conclude that the mr. rogers biography, exclusionary rule does not render the defendant’s statement inadmissible, even were we to philippine, 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 benefits, a police focus to obtain evidence specifically for a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the insurrection, statement, that he operated the vehicle from his home to Crosby’s home that morning, is insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and mr. rogers contradicted by other evidence in the hearing. Philippine Insurrection? Although a probation revocation hearing is vs macroeconomics not a criminal trial, and the defendant need not be given the “full panoply of philippine insurrection, constitutional protections,” due process requires that probationers be afforded some protections upon benefits of algae, an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193.
The rules, however, are flexible; hearsay is insurrection 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 “hearing officer specifically finds good cause for How Shakespeare (Specifically Act 3 Romeo, not allowing confrontation.” Gagnon v. Scarpelli, 411 U.S. Insurrection? 778, 786, 93 S.Ct. Biography? 1756, 36 L.Ed.2d 656 (1973).
See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of philippine, providing an accurate determination as to whether revocation is proper. Microeconomics Vs Macroeconomics? See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant’s statement. It is undisputed that the two went to the football game in philippine insurrection the defendant’s car. The defendant lived a distance from Crosby’s home, and the two were returning there when they were stopped by the police. No other explanation was offered of biography, how the defendant and his vehicle got from philippine, his home to Crosby’s.11 The cases cited by the defendant in his brief, Commonwealth v. Forde, 392 Mass. 453, 457, 466 N.E.2d 510 (1984), and Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to corroborate the mr. rogers, 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 philippine, hearsay was unreliable, we note only of algae that Read testified that he was present when the defendant admitted to driving earlier in insurrection the day, and that he had made a note of it in his police report.
Read was present at mr. rogers biography, the hearing and subject to philippine, cross-examination. The statement was an admission against History and Methodology Essay interest made by the defendant to police officers at a time when the officers were investigating him for another alleged crime, operating under the influence. The defendant, though present in philippine court, chose to remain silent. Declarations against penal interest are admissible for song little, the truth of the matters asserted. See Commonwealth v. Insurrection? Cruz, 53 Mass.App.Ct. Marx And Weber? 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at 516 (7th ed.1999). The hearsay was both credible and reliable. Order revoking probation affirmed. 1. Philippine Insurrection? See, e.g., Commonwealth v. Villalobos, 437 Mass. 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to marx and weber, sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced).
2. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of a guilty finding and the revocation of straight probation, were properly handled pursuant to the procedures applicable to philippine, a probation revocation. See generally Commonwealth v. Inc. Essay? Maggio, 414 Mass. Insurrection? 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Officer Read at the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to marx and weber, Read’s initial questions. Any variance is insurrection not material to our decision. 4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby’s statement. In his written findings, the Tension Act 3, judge noted that he found the defendant in insurrection violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the finding included “Mashpee police reports”; “Statement of Kevin Crosby”; “Mashpee P.O. Benefits Of Algae? John Read”; “Breath test on D.” Given the written finding that revocation was based on insurrection “Operating motor vehicle while suspended,” and the judge’s unequivocal statement that he was not relying on Crosby’s statement, we adopt the view that the revocation was based on the defendant’s admission that he had been operating the vehicle earlier that day. Both the vs macroeconomics, Commonwealth and the defendant adopt that position in this appeal.
5. With respect to the alleged violations, the notice stated in full: “You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. Philippine Insurrection? lic.” 6. And Methodology Of Apple Inc.? The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby’s statement that the defendant was driving, there is ample additional circumstantial evidence to tie the defendant to the operation of the vehicle at philippine insurrection, the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth’s arguments in this regard. 7. See as well Rule 3(b)(ii) of the marx and weber, District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Coronella’s report states in pertinent part: “During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the philippine insurrection, breath test. Of Apple Inc.? [The defendant] was given the test and the results were as follows…. [The defendant] was again asked how he got to the … game. He stated that he drove from his house in Brockton to Crosby home in East Bridgewater, picked up Crosby and insurrection then Crosby drove his vehicle to the game.” Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station. 9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to evidence seized in 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 mr. rogers, exclusionary rule where the insurrection, probation officer is aware of the target’s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit “stands alone” in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. Benefits? See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in insurrection Absence of marx and weber, Miranda Warnings, 30 A.L.R. Philippine Insurrection? Fed.
824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the mr. rogers biography, question whether a police officer’s knowledge of insurrection, a probationer’s status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby’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 microeconomics vs macroeconomics, Crosby’s. Philippine? Any determination of the weight and credibility of Read’s testimony was for the judge, and mr. rogers biography the contradiction was not so egregious as to philippine insurrection, cause us to conclude that the judge committed plain error. See Commonwealth v. Tate, 34 Mass.App.Ct. Of Algae? 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to philippine, an area adjacent to the checkpoint for administration of and Methodology of Apple Inc. Essay, field sobriety tests. 76 Mass.App.Ct. Insurrection? 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. 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 History and Methodology Inc. Essay detected an odor of insurrection, alcohol. Consequently, the trooper, although he had made no observations of the manner in vs macroeconomics which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. When Bazinet stepped out of the insurrection, 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 a breath test which revealed an alcohol level greater than .08%, and she was charged with operating under the influence. Exploring Tension Scene 1) In Romeo And Juliet? See G.L. c. 90, ? 24(1)( a )(1). Before trial, Bazinet moved to dismiss the complaint on philippine insurrection grounds that the checkpoint procedures were not consistent with constitutional requirements.
Before hearing the motion, a judge of the District Court reported the case for microeconomics vs macroeconomics, 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. 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991).
The questions are these: ?1. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the philippine insurrection, operator is OUI, to further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an operator for further testing? ?2. Is the Exploring How Shakespeare Tension 1) in Romeo, Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in philippine insurrection question on.
July 21, 2007 through the little boy lost, Division Commander’s Order (06-DFS,056),[ 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 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. Insurrection? Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. 3, 910 N.E.2d 281, further screening after the mr. rogers biography, initial checkpoint stop ?[i]f there is philippine insurrection reasonable suspicion, based upon articulable facts, that the operator … is committing … an OUI violation.? In Murphy, the troop commander’s order, like the troop commander’s order in this case, stated that further screening after the initial stop ?should be made? if the of algae, screening officer observed ?any articulable sign of possible intoxication.?
Murphy, supra at 321, 910 N.E.2d 281. The court said that the ?odor of alcohol? was one of the ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for philippine, further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court’s judgment in that regard is consistent with judgments made by courts in other States that have considered similar questions. See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the influence?).
Turning to question two, the opinion in Murphy did not consider the biography, Division Commander’s Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by operational instructions contained in a letter from the troop commander to the officer in charge of the checkpoint, as well as by philippine, 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 boy lost, all observed violations, thus reducing further the kind of discretionary enforcement that in philippine other cases has been found constitutionally wanting. See, e.g., Commonwealth v. Mr. Rogers? McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989).
In light of the foregoing, the answer to reported questions one and two is ?yes.? 1. This appears to insurrection, be a typographical error. Benefits Of Algae? The Division Commander’s Order included in the record appendix is numbered ?07-DFS-56.? 2. Philippine Insurrection? The court’s complete list of marx and weber, ?clues of impaired operation? was ?the condition of the eyes of the philippine, operator, the odor of alcohol, the speech of the vs macroeconomics, operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at philippine, 320, 910 N.E.2d 281. Later in How Shakespeare Builds 1) in the opinion, the court said that ?TRF-15 requires a predicate of insurrection, reasonable articulable suspicion based on Exploring Builds Tension (Specifically Act 3 and Juliet the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in insurrection plain view),? omitting ?odor of benefits, alcohol? from that list.
Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the insurrection, omission. As a consequence of Exploring How Shakespeare Builds Tension Act 3 Scene 1) in Romeo and Juliet, a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. Philippine Insurrection? L. c. 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the benefits, case or the panel’s decisional rationale.
Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. Insurrection? A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of microeconomics vs macroeconomics, intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and insurrection (2) reckless or negligent operation of Exploring How Shakespeare Scene 1) in Romeo, a motor vehicle, G. L. c. Philippine? 90, § 24(2)(a). On the marx and weber, day following the rendition of the jury’s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of OUI, fourth offense, G. L. c. 90, § 24(1)(a)(1), sixth par. On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver’s license for prior conviction of OUI, G. L. c. 90, § 23. Upon the convictions for OUI fourth, the judge sentenced the defendant to insurrection, four and one-half to five years’ confinement at of Apple, State prison; upon insurrection, the conviction for Tension Act 3 Scene 1) in Romeo, operation after suspension or revocation by reason of prior OUI conviction, the judge imposed a sentence of two and one-half years’ confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to 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 sentences.
For the following reasons, we reject the defendant’s appellate contentions and affirm the convictions and the sentences. Factual background. Insurrection? The evidence permitted the jury to find the following facts. On the afternoon of January 26, 2008, the defendant consumed four or five beers at microeconomics vs macroeconomics, her home in Lynn between 2:45 P. M. and philippine 6:00 P. M. Marx And Weber? At about 6:00 P. Insurrection? M., she left the house in mr. rogers order to purchase take-home food from philippine insurrection, 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. Mr. Rogers Biography? At a major intersection in Lynn and after she had taken a drink from the open can, she made an unlawful turn across three lanes, up and over a median island, and across two more lanes, so as to drive up to and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in philippine a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance. She did not respond to his instruction to put the car in How Shakespeare Tension (Specifically 1) in Romeo park gear; he did so and turned off the ignition. He noticed that her speech was slow and that an odor of philippine, 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 automobile. He formed the opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and biography testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, ‘Trial begins for Lynn mom charged with 5th OUI.’ The article stated that she had incurred three ‘drunken driving’ convictions during the 1990?s and a fourth in 2004. The article stated also that she ‘blew a.15 alcohol blood level when arrested’ for the current incident. At the beginning of the philippine insurrection, third day of microeconomics vs macroeconomics, trial, all counsel and the judge discussed the appearance of the article. When the jury entered the courtroom, the insurrection, judge addressed the History Essay, following question to them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in any way as a fair and impartial juror? Nobody’s raising their hand.’
He added a second question. ‘Has anybody seen or heard anything about any publicity from the news media about insurrection this case? Please raise your hand if there is any–anything you’ve heard at all, even the tiniest thing. Okay, nobody is raising their hand. Okay. All right, so we will resume with the mr. rogers biography, trial.’ Defense counsel did not object to the judge’s treatment of the issue of exposure to prejudicial publicity by insurrection, these questions. Later that day, after the close of the evidence and in the course of final instructions to the jury, the judge reminded the jury at marx and weber, three points that they must base their verdict exclusively upon the evidence comprised of insurrection, testimony and exhibits received in 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 prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. ‘This is a sad case. I understand that I have a limited amount of information about what happened and about the biography, [d]efendant, but it’s pretty obvious to philippine, me that, from what I have received, that the vs macroeconomics, [d]efendant Ms. King is probably a very nice person and philippine insurrection she probably–it’s not hard to see that she’s probably had a difficult life; I am sensitive to these things. Little Boy Lost? But the sentence I’m going to impose is necessary, in my view.’ The judge then specified the sentence for each offense. At the conclusion of his announcement of the respective sentences, he made the following one-sentence statement. ‘I assume it’s obvious what my feelings are about why this sentence is required.’ The remark brought no objection.
On the philippine insurrection, same day, the How Shakespeare Tension (Specifically, judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the philippine, appropriate space for explanation of the departure from the guidelines, he wrote, ‘Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.’ Newspaper article. On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. Marx And Weber? The article had obvious prejudicial potential by reason of its information about philippine a breathalyzer test result and the defendant’s prior OUI convictions. Because the boy lost, defendant lodged no objection to the judge’s preventive or curative efforts at the time of trial, we review this argument under the standard of substantial risk of a miscarriage of justice. We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel’s failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. Insurrection? See Commonwealth v. Vs Macroeconomics? Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judge’s management of the issue.
The defendant relies upon the case of Commonwealth v. 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 insurrection, course of trial. ‘If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror’s exposure to the material and its effects on biography the juror’s ability to render an impartial verdict’ (emphasis supplied). The thrust of the defendant’s argument here is that the judge had a duty, not an option, to philippine insurrection, conduct individual voir dire questioning of the vs macroeconomics, 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’s continuation into individual interrogation of philippine insurrection, jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to search for History of Apple Essay, it during the course of philippine insurrection, a trial. That danger has become all the more serious as a result of the evolution of Internet technology. Song Little? Both doctrinally and practically the judge committed no error in these circumstances. Philippine Insurrection? 1. Sentencing.
The defendant argues that the judge’s reference to benefits, ‘feelings’ about the philippine insurrection, imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by case law, particularly the case of Commonwealth v. Mills, 436 Mass. Mr. Rogers? 387, 399-402 (2002). That decision emphasizes, ‘A trial judge must be ever vigilant to philippine, make certain that his personal and Tension Scene Romeo private beliefs do not interfere with his judicial role and philippine insurrection transform it from that of impartial arbiter.’ Id. at 401. The defendant characterizes the reference to ‘feelings’ as a forbidden indulgence of ‘personal and private beliefs.’ The judge’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 ‘feelings’ in of algae the setting of the judge’s entire remarks about sentencing. In that light, it reflects reasons and not emotion. He commented that he viewed the case as a ‘sad’ one. Since it involved no personal injuries or casualty, his reference to its ‘sad’ character alluded to the fate of the defendant. He observed that she may well have had a hard life.
He observed also that he was ‘sensitive’ to her circumstances. At the same time, he found her behavior over philippine insurrection, the decade and one-half covered by her four OUI convictions to constitute a serious threat to public safety. He justifiably viewed her record as ‘egregious.’ She embodied a danger to the lives of innocent travelers and pedestrians on and near the roadways. His sentencing scheme removed that peril for the period of years imposed for biography, confinement. Philippine? 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’s argument is marx and weber that the judge had a duty to make specific reference to the Lynn Item article in his collective question to the jury. The Jackson case creates no such duty.
Specific reference would raise the risk of juror research. The judge’s choice created no error of law or abuse of discretion. Mass DUI OUI “Not Public Way” – Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the insurrection, defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the mr. rogers biography, influence of alcohol. 76 Mass.App.Ct. 830. Appeals Court of insurrection, Massachusetts, Argued Feb.
3, 2010. Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Microeconomics Vs Macroeconomics? Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of philippine, operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard.
The pier is of algae surrounded on all sides by water and accessible by philippine, automobile only by way of public streets.1 Those streets end at Terry Ring Way. As described by a police officer, ?Off of biography, Terry Ring way, there is a short paved area that cars can go down and philippine insurrection stop about fifty yards down.? Entry to the pier is Builds Tension Romeo and Juliet then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on insurrection the pier. Song Little Boy Lost? 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 philippine, 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 mr. rogers the pier were ?usually the director’s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on would had to have gone across the wooden boards into the section down on the pier; there’s no motor vehicles at all, it’s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there’s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the 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 insurrection blurry-eyed, and that he smelled of of algae, alcohol. Spinetto attempted to dissuade the philippine insurrection, defendant from and Methodology of Apple Inc. Essay, driving, but the defendant got back into the truck and attempted to leave the insurrection, scene. With the assistance of of algae, another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by philippine insurrection, opening and of algae closing the truck’s doors and by insurrection, closing the gates to microeconomics vs macroeconomics, the pier.
Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and talking to the defendant, the philippine, police placed the defendant under arrest. 2. Public way. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the Tension Act 3 Scene, public has a right of philippine insurrection, access, or upon any way or in any place to benefits of algae, which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to insurrection, include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass.
635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. 1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996).
In making that determination, we look to see if the mr. rogers biography, ?physical circumstances of the philippine, way are such that members of the public may reasonably conclude that it is open for microeconomics vs macroeconomics, travel….? 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 philippine insurrection, usual indicia of How Shakespeare Act 3 Scene Romeo and Juliet, accessibility to philippine insurrection, the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at microeconomics, 549-550, 672 N.E.2d 16. See Commonwealth v. Stoddard, 74 Mass.App.Ct.
179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Indicia that the way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Insurrection? Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is Exploring How Shakespeare Tension (Specifically Act 3 Scene 1) in of great significance?). Deeds are also relevant considerations.
See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). The focal point of the case was whether Pier 4 was a public way. Philippine? To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of marx and weber, accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,? and testimony regarding the presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to philippine, the youth of song little, Boston,? which apparently was running sailing competitions on the day the insurrection, defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to and Methodology of Apple Essay, the pier and signage indicating access only to authorized vehicles. The Commonwealth’s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the philippine, status of the pier as a public way is a close question. There was ample evidence that the pier was public and a way and paved and lit in a manner suitable for vehicular traffic. Mr. Rogers Biography? The issue, however, was whether public vehicular traffic had been prohibited or restricted.
As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by insurrection, a motor vehicle, to marx and weber, a particular way or place? (emphasis original).3 The court in philippine George reversed the marx and weber, conviction because the drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the insurrection, presence of a gate and mr. rogers 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 philippine insurrection could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to song little, authorized vehicles, the sign appearing in philippine the photographs included in song little the trial exhibits was small and partly washed out. See Commonwealth v. Philippine Insurrection? 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 pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Microeconomics? 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). Insurrection? 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 marx and weber, Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at philippine, 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 marx and weber, influence of alcohol not only on the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to get to insurrection, the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on song little boy lost those public roads before he arrived at the pier. Insurrection? The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and microeconomics having to philippine insurrection, urinate in public. Proof of operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. Benefits? 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 driving, and the impairment.
Moreover, the judge’s instruction to the jury in defining a public way was not unnecessarily narrowed to the pier. Philippine? Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by mr. rogers, some level of government is insurrection what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.? Thus, the instructions on public way encompassed the How Shakespeare Builds Tension (Specifically Act 3 Romeo and Juliet, 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’s failure to philippine, object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the Exploring (Specifically Act 3 Scene and Juliet, defendant was on his feet, we cannot say on this record that trial counsel’s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the insurrection, defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant’s argument that the judge considered improper factors in sentencing is song little boy lost without merit.
The defendant contends that Spinetto should not have been given the philippine insurrection, opportunity to give ?a community impact statement,? speaking about microeconomics his loss of limb after being run over by a drunk driver over insurrection, thirty years prior, and making a plea for the judge to song little, keep the defendant from injuring other people. Although the judge briefly mentioned Spinetto’s community impact statement in her sentencing remarks, it is clear that the philippine, defendant was appropriately sentenced based on his prior record and song little boy lost that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. Philippine Insurrection? (concurring). I concur fully in the specific rationale of the affirmance: that the of algae, evidence and the judge’s proper instructions permitted the jury to find that the defendant had driven under the influence of insurrection, alcohol on the public roads leading to the pier. Ante at 835, 927 N.E.2d at 500. Of Algae? That analysis freed us from the need to resolve the philippine insurrection, ?close question? whether the pier constituted ?any way or … any place to song, which the public has a right of access, or … any way or … any place to which members of the insurrection, public have access as invitees or licensees….? G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of precedent restrictively construing the statutory terms ?way? and ?place.?
As usual, we have avoided possible contradiction of precedent still approved by 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 How Shakespeare Builds Tension Act 3 Romeo and Juliet the need for examination of the underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle … while. under the influence of intoxicating liquor … shall be punished….? 3. The opinion of the court describes the philippine insurrection, location, the access roads, the gate, and marx and weber signage related to the pier. Ante at 833-835, 927 N.E.2d at 499-501. Four important and independent circumstances of the use of the pier emerge as well from the evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to a terminal at the edge of the pier from which they could walk across it.
An instructional sailing club conducted a program for insurrection, children from the mr. rogers, pier; their parents and friends would observe their. races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and endangered by the defendant’s driving were pedestrians. Additionally, the evidence permitted the jury to make the following findings about the defendant’s conduct. Philippine? He drove his pickup truck at a high speed onto marx and weber the pier; got out and urinated onto one of the benches; reentered the truck and backed into insurrection another bench; and then backed up further so as to collide with a storage shed used by the sailing club. Benefits? The truck suffered substantial damage; the defendant got out insurrection, again and walked away from it. Major case law. Song Little Boy Lost? A sensible and direct application of the words of the statute to philippine, the circumstances of the pier and boy lost the actions of the defendant would appear to make him punishable. Philippine? However, the interpretative overlay of the following cases has required that the benefits of algae, ?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 philippine insurrection, affirm the mr. rogers biography, conviction of the defendant, not on the basis of his extraordinary conduct on the pier, but rather on insurrection the basis of his inferable driving down separate roadways. The original act punished simply operation under the influence ?on any public way or private way laid out under authority of law.? St.1906, c. 412, ? 4. Of Algae? It made no reference to operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for the protection of travellers on highways,? and insurrection therefore presumably persons in motor vehicles. History And Methodology Of Apple Essay? See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E.
829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon highways?); Commonwealth v. Philippine? Clancy, 261 Mass. Song Little Boy Lost? 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to philippine insurrection, regulate the use of motor vehicles upon ways?). In 1928, the Legislature rewrote the entire provision. Its opening main clause now declared, ?Whoever upon any way, or in any place to which the public has a right of access, operates a motor vehicle … while under the influence of intoxicating liquor … shall be punished …? (emphasis supplied). G.L. Benefits? c. 90, ? 24, as appearing in St.1928, c. 281. Philippine? Thus the and Methodology of Apple Essay, notion of statutory protection for insurrection, highway travelers or motorists took hold in the version of the act predating any reference to operation in song little boy lost a ?place.? Subsequent decisions seem never to have caught up with the insurrection, 1928 addition of the concept of benefits of algae, a ?place? as the insurrection, site of operating under the influence. Despite the added term, the court in Commonwealth v. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon little boy lost, the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over insurrection, it, even though the owner of the private way had permitted use of it by members of the public as business invitees or business licensees to microeconomics, a nearby restaurant and philippine a market building. The court reasoned that the canon of strict construction of penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the public as business invitees or licensees.
Ibid. Three years later the Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. Benefits Of Algae? 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 philippine insurrection, influence?), the court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?).
In another it determined that the defendant’s operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owner’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. Benefits Of Algae? Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). Insurrection? The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to its terms. Biography? Id. at 205, 539 N.E.2d 533. Philippine? ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to address the Exploring Tension (Specifically 1) in and Juliet, 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 insurrection, court held that the center field area of a public school baseball field did not qualify as a public way or place to How Shakespeare Tension (Specifically Scene, which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field.
Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. 4. The issue.
None of the cases appears to insurrection, have addressed the applicability of the statute to places to which members of the public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. Marx And Weber? Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Philippine Insurrection? Superior Court Dept. of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). Little Boy Lost? The language extends to philippine insurrection, impaired operation ?upon any way or in any place? accessible to members of the public as invitees or licensees. The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the generality of the intended ?place.? The Legislature did not confine the roles of invitees or licensees to persons conveyed by motor vehicles. It.
chose the additional words in 1961 as a specific answer to marx and weber, the narrow interpretation and philippine insurrection the invitation of microeconomics, additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out that the act’s penal character requires strict interpretation. See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute’s meaning?); Commonwealth v. Philippine? Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). And Methodology Of Apple Essay? If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the philippine insurrection, latest reference in microeconomics the George case, 406 Mass. at philippine, 638, 550 N.E.2d 138, points out, the critical assumption of the law’s limitation to members of the biography, public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of lenity gives the defendant the benefit of philippine, a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass.
647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Marx And Weber? Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in a discussion of the scope of the act. Philippine? 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 biography the defendant’s contention of insurrection, redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature’s addition of the word ?place? in 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 and Methodology, the conveyance of traffic. Philippine? 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. Of Apple Inc. Essay? 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the term ?place? by the Legislature expanded the diameter of the statute beyond the focus of the early decisions on protection of highway travellers. Other standards of insurrection, interpretation forbid courts to add language to benefits of algae, the terms chosen by the Legislature. Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to philippine insurrection, a statute that the Legislature did not put there, either by inadvertent omission or by design?). History And Methodology Of Apple Inc. Essay? See 1010 Memorial Drive Tenants Corp. Insurrection? 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 little, phrase ?by motor vehicle? to philippine insurrection, the Legislature’s words ?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.? That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. Microeconomics? See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to insurrection, keep their vehicles on usual roadways. It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of benefits of algae, motor traffic. Members of the public engaged in philippine rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the marx and weber, kind presented in this case would be located in places of philippine insurrection, insufficient public access for protection against impaired drivers because they entered them on foot.
That interpretation opens a substantial gap in the coverage of the act. Benefits Of Algae? It shifts the application of the law from the irresponsible conduct of the insurrection, impaired driver to Tension Act 3 Scene and Juliet, the fortuitous location and status of his endangered or injured victim. Solutions. Philippine? A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the statute. Vs Macroeconomics? The principle of stare decisis should not denature into a pattern of philippine, errare decisis. Essay? Several processes are available to break the momentum of error. Within the insurrection, executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon marx and weber, the operator’s use of public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here. Within the judiciary the insurrection, Supreme Judicial Court could reconsider the present construction said by the court in song little George to philippine, have evolved without discussion.
Finally, and perhaps ideally, the marx and weber, Legislature could further amend the philippine, statute to extend its reach unmistakably to ?any place in which the public has a right of access, or … any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the song, pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the insurrection, exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to microeconomics vs macroeconomics, Charlestown, picked up a friend, and insurrection continued to drive to the Charlestown Pier. He then drove in microeconomics vs macroeconomics traffic on public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the Commonwealth’s case on the public way question, we do not consider the philippine insurrection, defendant’s testimony in and Methodology of Apple Inc. determining whether that motion should have been allowed. 3. In Commonwealth v. Insurrection? George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of law, a public way.?
Id. at History of Apple Essay, 636, 550 N.E.2d 138. 4. The evidence in Commonwealth v. George, supra at insurrection, 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and overturned the car while trying to leave the field. In the instant case, in contrast, the boy lost, evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the insurrection, influence on public roads prior to his arrival at the pier. 5. We recognize that the Exploring Builds Tension (Specifically Act 3 Scene Romeo, Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge’s instructions and the proof offered adequately presented the issue for philippine insurrection, the jury’s consideration. 6. Benefits Of Algae? The passenger left the car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the philippine, field sobriety test on cross-examination.
8. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendant’s prior record, having considered the boy lost, mitigating information and the letters submitted by his wife, his mother, and philippine 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. Of Algae? Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988). Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited.
That limitation, however, does not bar the court from insurrection, useful observations in dicta about the continuing viability of precedent challenged by the facts or arguments of and Methodology Inc. Essay, specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Insurrection? 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 History Inc., landlord’s breach of philippine insurrection, covenants in and Methodology Essay the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass. 708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the insertion of standards or rules to cure chronic problems revealed by insurrection, multiple cases. Benefits Of Algae? See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct.
190, 196 n. Philippine Insurrection? 4, 794 N.E.2d 1229 (2003), suggesting the Tension Scene and Juliet, utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of that view by the Supreme Judicial Court, S.C., 442 Mass. 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the Supreme Judicial Court, in 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. Philippine? c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. 25, ? 3, and by St.2003, c. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in History and Methodology ? 24(1)(a ) (1), the Appeals Court has consulted the definition of philippine insurrection, that term by G.L. History Of Apple? 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 philippine, park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of History and Methodology of Apple Inc., 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 philippine insurrection, 499, quoting from Commonwealth v. Microeconomics? Smithson, 41 Mass.App.Ct. Philippine Insurrection? 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for conviction of operating under the marx and weber, influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and insurrection which was indisputably open for travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at of Apple Inc. Essay, 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by insurrection, prosecutor, Defendant’s decision not to of algae, testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. Insurrection? McGILLIVARY. Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by microeconomics, the advance sheets and bound volumes of the Official Reports.
This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the philippine, influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in the Superior Court Department on January 26, 2005. The case was tried before Howard J. Mr. Rogers? Whitehead, J. James P. McKenna for philippine insurrection, the defendant. Ronald DeRosa, Assistant District Attorney, for the Commonwealth.
Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. 90, § 24(1)(a)(1). 1 His principal issue focuses on marx and weber the meaning of “operation” under that statute. Philippine? We affirm. 1. Operation of the motor vehicle. A. Operation as matter of song little boy lost, law.
At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the philippine insurrection, keys in the ignition and turning the Exploring How Shakespeare Builds Tension (Specifically Act 3 Scene 1) in, electricity on, but not turning the engine on. There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the insurrection, wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged.
2 The issue whether a defendant who places the key in the ignition and turns the little, electricity on without starting the engine may be found to be “operating” the vehicle for purposes of G.L. c. Philippine? 90, § 24, is one of first impression in Massachusetts. 3. To define “operation” we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. Biography? 22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. c. Philippine Insurrection? 90, § 24, when, in the vehicle, he intentionally does any act or makes use of mr. rogers biography, any mechanical or electrical agency which alone or in sequence will set in insurrection motion the motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation).
Under the biography, Uski definition, turning the key in the ignition to the “on” setting could be found to philippine, be part of a sequence that would set the vehicle’s engine in benefits of algae motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. The purpose of G.L. c. 90, § 24, is to “protect the philippine insurrection, public from intoxicated drivers,” Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sudderth, 37 Mass.App.Ct. Mr. Rogers Biography? 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf.
State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[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 philippine insurrection, movement of a motor vehicle while intoxicated…”). Even an intoxicated person who is sleeping behind the wheel is dangerous because “that person may awaken and decide to benefits of algae, drive while still under the influence.” State v. Kelton, 168 Vt. 629, 630 (1998). 6. In sum, applying the philippine, 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’s seat, turned the song, ignition key–an act which the jury could have found to be the first step in a sequence to set in motion the motive power of the vehicle–was sufficient to insurrection, permit the jury to mr. rogers, conclude that he “operated” the motor vehicle.
See also State v. Insurrection? Haight, 279 Conn. at 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will “set in motion the motive power of the vehicle”) (citation omitted). 7, 8. We are unpersuaded by the defendant’s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to song boy lost, the “on” position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to a position that does not start the car would only draw power from the battery and thus neither starts the philippine, engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the defendant is correct and that turning the key to the “on” position does not engage the engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. Mr. Rogers Biography? c. 90, § 24, “merely because it is immovable due to road or other conditions not involving the vehicle itself.” Id. at 184. Applying the Uski definition to the facts before it, the court concluded that “the defendant… operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine.” Id. at 183-184. In so holding, the court did not state that operation was conditioned on philippine insurrection an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the jury instructions were inappropriate. The judge’s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant’s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver’s seat with a key turned in the ignition compelled a finding of operation.
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 present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. c. 90, § 24(1)(a)(1). More specifically, he contends that as a factual matter, the Commonwealth failed to History of Apple, prove that he put the key in philippine insurrection the ignition of the car and turned the key. Exploring How Shakespeare Tension (Specifically Scene Romeo And Juliet? We consider “whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient… to permit the jury to infer the insurrection, existence of the essential elements of the crime charged…” beyond a reasonable doubt. Marx And Weber? Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the defendant was found asleep in the driver’s seat “slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.” The defendant’s feet were “right in front of him.” The vehicle’s dashboard was illuminated.
The key was in the ignition and had been turned to the “on” position so that the insurrection, “energy to the vehicle was on,” but the microeconomics vs macroeconomics, engine itself was off and “[t]he vehicle was not running.” The police officer had to “physically turn the ignition back” in order to remove the key. The police did not observe anyone else in the van at philippine, the time of arrest. Exploring Tension Scene 1) In And Juliet? Viewed as a whole, the insurrection, evidence was sufficient to support a finding that the defendant, while sitting in the driver’s seat of the benefits of algae, vehicle, put a key in the ignition and turned it to the “on” position. See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (“Circumstantial evidence may be exclusive evidence of philippine, operation of a motor vehicle, a required element of microeconomics vs macroeconomics, OUI”), citing Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of insurrection, evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and the arresting officer that the defendant, upon being awakened by the police officer, told the officer that the officer did not have the vehicle’s keys. The defendant testified that, after he moved to the driver’s seat and began eating his food, he did not remember what happened until the History and Methodology, police officer woke him up.
The jury, however, could have found that the insurrection, 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 contradictory evidence does not require a finding of not guilty. See Commonwealth v. Pike, 430 Mass. 317, 323-324 (1999). Second, the defendant points to marx and weber, the testimony of his friend that the friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into philippine insurrection the driver’s seat, picked up the key and put it in benefits the ignition when he moved to insurrection, the driver’s seat. 2. Other issues. Mr. Rogers Biography? A. Though he did not object below, the philippine insurrection, defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree.
The prosecutor’s argument disputing the microeconomics, defendant’s characterization that he was victim of a conspiracy by philippine, the police officers was an appropriate response to of algae, defense counsel’s argument that implied such a conspiracy. Insurrection? See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). We also conclude that the prosecutor’s statement that the How Shakespeare Builds Scene, defense witness’s testimony corroborated the officers’ testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was “improperly muzzled” at trial because he was not permitted to testify that he intended to philippine, sleep overnight in the van so that he could go to court in Gloucester the next day.
The defendant, however, was permitted to elicit testimony from the defendant’s friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorney’s strategic advice not to vs macroeconomics, testify during his examination about insurrection his plans to sleep in the van because such testimony might open the door to evidence of prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the defendant moved to replace his attorney, and the judge denied the motion.
The record reflects that as soon as the judge became aware of a conflict between the defendant and his counsel, the defendant was provided an opportunity to explain his reasons for wanting to remove his attorney. Boy Lost? The judge did not abuse his discretion in denying the defendant’s motion where (1) this trial counsel was the defendant’s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for insurrection, a new trial on his behalf, but without the defendant’s presence, the defendant’s presence would not have affected the outcome of that motion for a new trial; and (4) the defendant merely complained of something that any lawyer who represented him “who had any competence at all would do.” See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the mr. rogers biography, judge abused his discretion by refusing to remove two jurors for cause. We disagree. With respect to philippine, each of the complained-of jurors, the judge dispelled any concerns about the juror’s bias through follow-up questioning, in song little boy lost which the jurors said they would consider all the philippine insurrection, evidence to determine whether a police officer was telling the truth in the event that the mr. rogers biography, officer’s testimony was challenged.
A trial judge is afforded “a large degree of insurrection, discretion” in biography the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). “Where, as here, a judge has explored the grounds for philippine insurrection, any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the boy lost, judge abused his discretion by empanelling the juror unless juror prejudice is manifest.” Commonwealth v. Insurrection? Seabrooks, supra at 443. Inc. Essay? No such prejudice was manifest here. E. The defendant challenges the insurrection, sufficiency of the evidence of prior convictions presented at the subsequent offense portion of mr. rogers, his trial. Reviewing the philippine, issue under the Builds (Specifically Act 3 1) in Romeo and Juliet, familiar standard of Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendant’s contention is without merit.
First, there was ample evidence that the defendant was the person who had been convicted of similar offenses once in 1986 and insurrection twice in 1988. See Commonwealth v. Bowden, 447 Mass. Boy Lost? 593, 602 (2006) (“[registry of motor vehicles] records, which contained more particularized identifying information…, also reflected the offenses and the fact that they were the defendant’s”). See also Commonwealth v. Maldonado, 55 Mass.App.Ct. Insurrection? 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 microeconomics, convictions or docket sheets are nontestimonial and admissible under the philippine insurrection, confrontation clause. Of Algae? Commonwealth v. Philippine? Weeks, 77 Mass.App.Ct. 1, 5 (2010). Finally, the judge’s instructions to mr. rogers, 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 insurrection, person who had committed these previous offenses. F. There is no merit to the defendant’s contention that he was denied his right to speedy trial. Marx And Weber? Pursuant to Mass.R.Crim.P. Philippine? 36(b)(1)(C), 378 Mass.
910 (1979), “a criminal defendant who is not brought to trial within one year of the return day in the court in which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the mr. rogers, Commonwealth justifies the delay.” Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant’s trial began on January 23, 2007, 686 days later. “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.” Commonwealth v. Spaulding, 411 Mass. Philippine? 503, 504 (1992). Of the 686 days between those two dates, the docket sheet and mr. rogers biography documents filed in support or opposition to the defendant’s motion to dismiss show that many days are excluded from the calculation. Due to philippine insurrection, 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 benefits of algae trial on another charge that are also excluded. 16 See Mass.R.Crim.P. Philippine Insurrection? 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Benefits? Finally, the defendant’s motion to dismiss, which was filed on December 13, 2006, and decided on January 10, 2007, also tolled the running of the philippine, rule 36 time for twenty-nine days. See Commonwealth v. Builds Tension Scene 1) In? Spaulding, 411 Mass. at 505 n. Insurrection? 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to count against the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the motion to dismiss is affirmed. 18. 1. How Shakespeare Tension (Specifically Act 3 Scene? General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part: “Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the philippine, public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of vs macroeconomics, alcohol in their blood of eight one-hundredths or greater, or while under the philippine, influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in song section one of chapter ninety-four C, or the vapors of glue shall be punished…. “If the philippine insurrection, defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program… because of a like offense three times preceding the date of the History and Methodology Essay, commission of the offense for which he has been convicted, the defendant shall be punished by a fine of philippine, not less than [$1,500] nor more than [$25,000] and by History and Methodology of Apple Essay, imprisonment in the state prison for not less than two and one-half years nor more than five years….” 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct.
317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. 566, 568 (1926). 3. If the evidence shows that a defendant was seated in insurrection the driver’s seat with the engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the mr. rogers, statute. Philippine? 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 “seated in the driver’s seat with the engine running and marx and weber a key in the ignition”); Commonwealth v. Petersen, 67 Mass.App.Ct. Philippine Insurrection? 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 History and Methodology of Apple Essay ignition does not necessarily mandate a finding of philippine insurrection, operation).
4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on the motor or simply placed the key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (“The defendant’s intention after occupying the driver’s seat is not an element of the statutory crime”). 6. See also State v. Marx And Weber? Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (“We believe that an philippine intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. Mr. Rogers? The danger is less than where an insurrection intoxicated person is History and Methodology of Apple Essay 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 philippine a legitimate inference to be drawn that he placed himself behind the History and Methodology of Apple Inc. Essay, wheel of the vehicle and could have at philippine insurrection, any time started the automobile and driven away”). 7. Cf. Stevenson v. Falls Church, 243 Va. Mr. Rogers? 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the philippine, defendant did not operate the vehicle “[b]ecause the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment” of the vehicle); Propst v. Commonwealth, 24 Va.App.
791, 794 (1997) (holding that the microeconomics vs macroeconomics, Stevenson v. Falls Church case stands for the proposition that the position of the philippine, key in the ignition is microeconomics vs macroeconomics a factor that a trial court should consider but does not create a bright line rule). 8. We do not decide whether any or all of the following could be found to philippine, be operation under G.L. Biography? c. Philippine? 90, § 24: inserting a key in the ignition without turning it and without engaging the motor or the vehicle’s power; using an electronic remote starting device to start the Builds 1) in, 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 philippine insurrection, engage either the electricity or the motor before going to sleep in a seat other than the driver’s seat. 9. In the absence of any evidence below regarding whether the key, when turned in song little boy lost the ignition to insurrection, the on position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the jury instructions is the following: “The first element which the Commonwealth must prove is that the of algae, defendant operates a motor vehicle. The expression ‘operation of a motor vehicle’ covers not only all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in motion. To operate a motor vehicle, it is not necessary that the engine be running.
The intentional as opposed to accidental manipulation of any mechanical part of the philippine, vehicle, or the use of any electrical agency which alone or in sequence will set in motion the mode of power of the vehicle is mr. rogers sufficient in law to philippine insurrection, constitute operation. A person operates a motor vehicle, within the mr. rogers, meaning of the law, when, in insurrection the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. The Commonwealth need not prove the defendant’s intention after occupying the driver’s seat.” 11. We also reject the defendant’s argument that “a stopped engine instruction” was required because the engine was stopped, and Exploring How Shakespeare Builds Tension Romeo the stop was not incidental to philippine insurrection, the operation of the vehicle.
See Commonwealth v. Cavallaro, 25 Mass.App.Ct. Mr. Rogers? 605, 609 (1988), quoting from insurrection, Commonwealth v. Vs Macroeconomics? Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. Philippine Insurrection? 90, § 24, includes “at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation”). Such an instruction was inappropriate here where the Commonwealth’s theory was that the defendant was operating the vehicle by putting the key in marx and weber the ignition and turning it. This theory did not depend on philippine insurrection any previous operation of the vehicle. 12. The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and was “highly intoxicated.” Furthermore, the arresting officer reported that the defendant smelled very strongly of History and Methodology Inc. Essay, alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the Commonwealth failed to meet its burden by not introducing sufficient evidence that the defendant’s friend was not the person operating the vehicle.
See Commonwealth v. Boothby, 64 Mass.App.Ct. Philippine Insurrection? 582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is distinguishable from the current case because, here, the police only found one possible operator at the scene and the present case does not involve a confession by the defendant. 15. Marx And Weber? 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 insurrection (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. Exploring How Shakespeare (Specifically Romeo And Juliet? The defendant’s trial on an unrelated charge began on philippine insurrection October 5, 2006. The excluded period extends until fourteen days after sentencing.
See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to marx and weber, a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the trial, and another delay between the second portion of the philippine insurrection, trial and sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to of Apple Inc. Essay, April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the requirement for a speedy trial, we do not compile a complete list of all excluded days.
18. The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. 276, § 35. Assuming, arguendo, that the judge denied the motion–there is no record of such ruling–and that this issue is properly before this court, we affirm. General Laws c. 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of philippine, 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 History and Methodology Essay, influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of philippine, G.L. c. 90, § 24[a]). 75 Mass. App. Ct. 643.
Appeals Court of Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. 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 marx and weber, influence of intoxicating liquor and philippine insurrection 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[a]). The defendant, who is African-American, appeals upon claims that (1) the trial judge improperly allowed the Commonwealth’s peremptory challenge of the only African-American in of algae the venire; (2) the trial judge improperly admitted evidence of the defendant’s blood alcohol content and erroneously instructed the jury on philippine insurrection that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in reversible error. We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant’s blood alcohol content without the mr. rogers biography, requisite expert testimony and gave an erroneous jury instruction in philippine insurrection relation to that evidence.
Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of marx and weber, 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 philippine, operation under the influence and negligent operation (in violation of G.L. c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Commonwealth’s motion to amend the June 1 complaint to add an mr. rogers biography alternate theory of intoxication, a 0.08 percent “per se” violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct.
645] in New Bedford District Court, and on insurrection May 19, 2006, the jury returned guilty verdicts on both charges. The trial judge sentenced the defendant to two and marx and weber one-half years in the house of correction on philippine the motor vehicle homicide charge and a consecutive sentence of two years in the house of Exploring Builds Tension (Specifically Act 3 Scene Romeo and Juliet, correction on the negligent operation charge. In December of 2006, the defendant filed a motion for insurrection, relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the microeconomics vs macroeconomics, motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion. The allowance of that motion is not at issue in this appeal.3. Background.
The evidence at insurrection, trial included the following. Benefits Of Algae? On November 27, 2003, at approximately 8:30 P.M., the defendant’s jeep and the victim’s vehicle collided at an intersection in New Bedford. Four people witnessed the collision, and each of philippine, them testified at trial. According to the witnesses, the defendant’s jeep went through a stop sign at a high rate of speed and struck the victim’s vehicle. A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the benefits of algae, defendant to the nearest hospital for treatment. Shortly after the philippine, collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash.
She analyzed the damage to the vehicles and microeconomics made numerous measurements of the crash scene. Based on insurrection her investigation, the expert concluded that the defendant’s jeep had been traveling at little boy lost, sixty-four miles per hour when it entered the philippine insurrection, intersection.4. [75 Mass. App. Ct.
646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the How Shakespeare (Specifically Act 3 1) in, defendant was “angry [and] agitated” and his breath smelled of alcoholic beverages. Philippine? He told the officers that he had consumed “a forty of OE,” a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant’s demeanor changed when one of the of algae, officers notified him of the victim’s death. While at the hospital, the philippine, defendant complained of pain in his chest. In response to his complaint, hospital staff drew a blood sample from mr. rogers biography, him and analyzed it. The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of philippine insurrection, .15 to .16.
Discussion. 1. Peremptory challenge. Mr. Rogers Biography? Jury selection proceeded over two days. Philippine Insurrection? On the first day, the judge called juror to side bar for further questions. The juror told the judge that she was diabetic.
The judge assured her that the disease would not be a problem. Exploring Builds Tension (Specifically Act 3 Scene 1) In? The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. Insurrection? The judge seated her conditionally in the jury box in advance of the parties’ challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror.
The judge noted that juror nineteen was the only African-American in the jury pool from marx and weber, either day. She asked the Commonwealth to explain the challenge. In response, the prosecutor gave two reasons: (1) the juror’s speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and (2) the prosecutor’s discomfort caused by the juror’s fixed stare at him during empanelment.5 The judge then determined that the prosecutor’s explanation was not race-based. [75 Mass. App. Ct. 647] Defense counsel asked for the judge’s impression of juror nineteen. The judge stated that the juror had “somewhat of a halting speech pattern” and philippine was “not incredibly articulate but … not inarticulate either.” The judge did not, however, “associate [the juror's speech] with slowness mentally.” The prosecutor explained that he believed that juror nineteen’s mental acuity was similar to biography, that of another juror whom the judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth’s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the jury had entered the philippine insurrection, court room, the judge commented further on the Commonwealth’s peremptory challenge of juror nineteen.
She stated that, after the previous day’s discussion, she had consulted decisions on peremptory challenges of. members of benefits, protected classes,7 and that she “wanted to put some more … findings on the record.” She recounted that she had requested an explanation for the peremptory challenge, and she repeated the prosecutor’s explanation. Philippine? She noted also that the applicable case law requires “a two prong analysis. One having to vs macroeconomics, do with the adequacy of the Commonwealth’s position once having been questioned about the reason for the challenge and then the genuineness of philippine, that.” Although the marx and weber, prosecutor had not mentioned the criminal. [75 Mass. App. Ct. 648] history of juror nineteen’s son when he had offered his explanation for the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the statement that “I find … the Commonwealth’s explanation both adequate and genuine, which is why I allowed the challenges to stand.” Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the philippine, use of peremptory challenges to exclude prospective jurors on the basis of race. See Commonwealth v. How Shakespeare (Specifically Act 3 Romeo? Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). “[W]e begin with the presumption that a peremptory challenge is proper.” Commonwealth v. Insurrection? Smith, 450 Mass.
395, 406, 879 N.E.2d 87, cert. Song Boy Lost? denied, ___ U.S. ___, 129 S.Ct. 202, 172 L.Ed.2d 161 (2008). Insurrection? However, one may rebut that presumption through proof “that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.” Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the challenge. History Of Apple Essay? See Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). When “the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that the insurrection, prima facie case of benefits of algae, discrimination has been made.” Id. at 463 n. Philippine Insurrection? 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which “pertain[s] to the individual qualities of the prospective juror and marx and weber not to that juror’s group association.” Commonwealth v. Soares, supra at 491, 387 N.E.2d 499.
If the proponent’s. [75 Mass. App. Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. See Commonwealth v. Philippine Insurrection? Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). Biography? The judge must then “make an independent evaluation of the philippine insurrection, [proponent's] reasons and … determine specifically whether the explanation was bona fide or a pretext.” Ibid. “In other words, the judge must decide whether the song little, explanation is both `adequate’ and `genuine.’” Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. Philippine? 422, 428, 765 N.E.2d 725 (2002). “[I]t is imperative that the record explicitly contain the mr. rogers biography, judge’s separate findings as to both adequacy and philippine genuineness and, if necessary, an explanation of those findings.” 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 question of the marx and weber, propriety of the peremptory challenge. She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and philippine insurrection allowed defense counsel to respond. Song Little Boy Lost? 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 be “slow” and because she had stared at insurrection, him in a discomforting manner. Little? The judge received defense counsel’s opposing response. She then stated that, although the insurrection, juror had “a halting speech pattern,” she did not find the juror mentally slow.
However, the judge concluded that the prosecutor had not misused the challenge and little boy lost allowed it. It was not until the next day that the judge explicitly found the prosecutor’s explanation to be adequate and insurrection genuine. The judge’s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and microeconomics timely explanation for allowance required by the line of cases culminating in Commonwealth v. Benoit, supra. As in insurrection 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’s explanation of the peremptory challenge. Song Boy Lost? See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor’s peremptory challenge where judge. [75 Mass. App. Ct. 650] requested explanation and insurrection then allowed challenge but “did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge”); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant’s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for peremptory challenge).
In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney’s office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by boy lost, the prosecutor in philippine insurrection 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. Of Apple Essay? In particular, the judge did not find either of the prosecution’s grounds adequate, i.e., “personal to the juror and not based on the juror’s group affiliation” and philippine “related to the particular case being tried,” 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 Inc. Essay, 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 the defendant. Insurrection? She made no reference to alternate theories of operation under the influence. During the trial, the benefits, Commonwealth introduced evidence of the insurrection, defendant’s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the charge conference, the and Methodology Inc. Essay, Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an instruction on the per insurrection se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in mr. rogers biography relevant part, as follows: “The law says that if the percentage of alcohol by weight in the defendant’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 philippine, intoxicating liquor at the time.” For reasons discussed below, the instruction was erroneous.
The defendant did not object to the blood test evidence, the prosecutor’s reference to it in his summation, or the judge’s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, § 24G, the motor vehicle homicide statute, and G.L. c. 90, § 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of intoxication. Microeconomics Vs Macroeconomics? St.2003, c. 28, §§ 1, 21, 22. Insurrection? Pursuant to biography, the amendments, the Commonwealth may prove intoxication through evidence that the defendant had “a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater.” G.L. c. 90, § 24G(a). Insurrection? Prior to the amendments, the statutes allowed the History and Methodology of Apple Inc. Essay, permissible inference of insurrection, intoxication when the defendant had a blood alcohol content of .08 percent or greater. Commonwealth v. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). Of Apple Inc. Essay? The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference.
See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the insurrection, Commonwealth relies solely on song little an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Ct. 652] absence of expert testimony to explain their significance.
Id. at philippine, 817-818, 864 N.E.2d 498. Boy Lost? The decision states: “If … the Commonwealth were to proceed only on a theory of impaired operation [instead of both a per se theory and an impaired operation theory] and offered a breathalyzer test result of insurrection, .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to guess at its meaning.” Ibid. As for trials where the Commonwealth relies on both theories, the mr. rogers biography, decision states further: “[I]f the per se and impaired ability theories of philippine, criminal liability are charged in the alternative … and so tried, we see no prejudice in song little boy lost 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 insurrection, 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.”
Id. at marx and weber, 817, 864 N.E.2d 498. Philippine Insurrection? We presume that this language applies to the results of blood tests in marx and weber addition to the results of philippine, breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant’s objection, admission of the Exploring How Shakespeare (Specifically Scene Romeo and Juliet, results required reversal. Id. at 664, 885 N.E.2d 164. In this case, the complaint charged both theories.
The judge admitted evidence of the philippine, defendant’s blood alcohol content without expert testimony to explain its relationship to intoxication. (Specifically Romeo And Juliet? The judge did not instruct the jury on philippine the per se theory. Furthermore, the judge erroneously instructed the jury on the permissible inference of intoxication eliminated by the 2003 amendments. See. [75 Mass. App. Ct. 653] Commonwealth v. Benefits? Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Philippine Insurrection? Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the benefits, erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice.
Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of guilt. Philippine Insurrection? Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002);
Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth’s evidence of benefits of algae, intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at philippine, a high speed and How Shakespeare Builds Scene 1) in and Juliet hit the insurrection, victim’s vehicle. A police officer who was at microeconomics vs macroeconomics, 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’s jeep had been traveling at sixty-four miles per hour when it entered the intersection.
The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of forty ounces of philippine, beer earlier in History of Apple Inc. the evening. However, the laboratory supervisor’s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication. Without it, the Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Hubert, 71 Mass.App.Ct. at philippine, 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the defendant’s signs of intoxication differed. Under the impaired operation theory submitted to benefits, the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of justice. See Commonwealth v. Philippine Insurrection? 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. Marx And Weber? The case is remanded to philippine insurrection, 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 microeconomics, 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. 90, § 24G[a]), the Commonwealth nol prossed the insurrection, motor vehicle homicide charge from the microeconomics vs macroeconomics, first complaint. 2. Under G.L. c. 90, § 24G(a), the Commonwealth may use either of two theories to prove operation under the influence: (1) operation “with a percent by philippine insurrection, weight, of alcohol in How Shakespeare Tension (Specifically Act 3 1) in [the] blood of eight one-hundredths or greater, or  while under the philippine insurrection, influence of intoxicating liquor.” G.L. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21.
See Commonwealth v. Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. Microeconomics? 1009, 902 N.E.2d 368 (2009). Prior to the amendment of the June 1 complaint, the philippine, complaint alleged only the second theory. 3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth’s motion to file a late notice of appeal from the microeconomics, grant of the insurrection, defendant’s motion for relief from an unlawful sentence.
The Commonwealth’s appeal has not entered in this court. In its brief, the Commonwealth does not argue the propriety of the of Apple, grant of the philippine, motion. Therefore, we do not address it. 4. She opined also that the defendant’s jeep had struck a vehicle parked on the side of the road prior to the collision with the victim’s vehicle. 5. In its entirety, the prosecutor’s explanation was: “Judge, she appears slow to me at side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and mr. rogers biography it appeared to me that she was staring at me, staring me down while we were at the side-bar; and philippine it bothered me. But I do find that she’s slow at microeconomics vs macroeconomics, side-bar speaking with her, in her speech; and I’m concerned that this is a three or four day trial, a lot of philippine insurrection, witnesses; and I’m concerned about her ability to try the evidence.” 6. Song Little Boy Lost? The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the judge asked the insurrection, prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the Exploring How Shakespeare Builds Tension Act 3 1) in Romeo, judge had asked juror fourteen, a white male, some questions at side bar, and insurrection the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an Exploring Builds (Specifically 1) in Romeo and Juliet explanation, and the judge allowed the challenge.
7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the judge stated that she “look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of a [discrete] group….” The reference (jumbled in philippine insurrection transcription) most probably was the Maldonado decision. 8. The judge’s reference to the criminal history of juror nineteen’s son was as follows: “I would also add that it was known to all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney’s office and How Shakespeare Builds Tension Romeo apparently came up…. [A]nd I don’t remember the insurrection, case per benefits of algae se but she spoke about philippine insurrection it. It apparently just happened last fall.”
The judge went on to say that she understood the biography, Commonwealth’s concern “whether she could perform in a truly objective manner” 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 philippine insurrection the next-day review of her reasons for Essay, allowance of the peremptory challenge, the judge referred to the experience of juror nineteen’s son in the New Bedford District Court. See note 8, supra. Philippine Insurrection? The prosecutor did not refer to the criminal history of the juror’s son as justification for his peremptory challenge.
A judge may not supply her own reasons to justify a prosecutor’s peremptory challenge. See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct.
636, 139 L.Ed.2d 615 (1997). 10. Song? That explanation had little chance of philippine insurrection, success. Vs Macroeconomics? “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s `gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.” Commonwealth v. Maldonado, 439 Mass. at 465, 788 N.E.2d 968. 11. This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of philippine insurrection, any challenge of either the Commonwealth or a defendant. 12. The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the Hubert decision in May 2008. Therefore the judge and trial counsel did not have the benefit of History of Apple Inc., those interpretations of the 2003 amendments. 13. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the issue so that the standard of review was the presence of insurrection, prejudicial error.
Here we have reviewed the issue under the less demanding standard of substantial risk and found the error again sufficiently serious to vs macroeconomics, require reversal. 14. As mentioned in insurrection 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’s mother at benefits of algae, the defendant as the jurors left the courtroom on the first day of trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the jury’s view of the site. The claim of calculated impropriety by the prosecutor arises from testimony of two police officers that they told the defendant that he had “killed” the victim. The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the judge’s decision on a motion in limine.
No evidence supports the view that the mother’s outburst or the accident site memorial overcame the judge’s instructions for a verdict based strictly on philippine the evidence. The claim related to the officers’ use of the word “killed” fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by reason of the admission of the marx and weber, blood alcohol test result. The rule of Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct.
2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal. Massachusetts OUI Case – Defendnat admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED. Andrew S. Robinson, Asst.
Dist. Philippine Insurrection? Atty. Marx And Weber? (orally), Franklin County DA’s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for philippine, Gerald W. Gilman. Panel SAUFLEY, C.J., and microeconomics vs macroeconomics ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of philippine insurrection, Maine appeals from a judgment of the benefits of algae, 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 insurrection, court imposed an illegal sentence when it sentenced Gilman to less than the song boy lost, 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 “all penalties and punishments shall be proportioned to the offense.” 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. court erred in admitting a certified record from the Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. Philippine Insurrection? 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State’s appeal is accompanied by little, 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 insurrection, State’s contention that the sentence imposed on little boy lost Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and insurrection remand for resentencing. ? 4 The facts are not in dispute. Marx And Weber? On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. He had not been drinking.
Gilman, a member of the local Elks Club, was returning from the club’s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the philippine insurrection, influence (OUI) conviction. In fact, Gilman’s license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the Secretary of State, admitted at trial over Gilman’s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). Vs Macroeconomics? The charge was enhanced because of insurrection, his three OUI convictions within the previous ten years.
29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as “Tina’s Law,” provides that in that circumstance “the minimum fine . . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by microeconomics vs macroeconomics, the court.” 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 philippine, 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 How Shakespeare Builds Romeo and Juliet, 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. Philippine Insurrection? 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 How Shakespeare Builds (Specifically Act 3 Scene, the admission of philippine, a certificate issued by biography, the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman’s motion for a judgment of acquittal, and took the philippine insurrection, ultimate issue of whether the State had met its burden of proof under advisement.
Gilman then filed a written. argument asking the court to microeconomics, revisit its earlier rejection of insurrection, his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. The court heard argument and took the issues under advisement. ? 8 On September 8, the History Inc., court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the philippine, court’s reasoning on the Confrontation Clause issue and again denied Gilman’s equal protection claim.
On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Of Apple? 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 “Tina’s Law” increased the penalties if he were to be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman’s due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from philippine insurrection, four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman’s sister, and Gilman himself. At the conclusion of the hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the Exploring How Shakespeare Builds Tension (Specifically Scene and Juliet, court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Insurrection? 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 vs macroeconomics, the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to insurrection, Mr. Gilman.
? 11 At a final hearing on December 11, the court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009). The State orally moved the Exploring Tension (Specifically Scene 1) in Romeo and Juliet, court to philippine, correct what it viewed as an illegal sentence pursuant to M.R.Crim. P. 35(a);4 the benefits, 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 insurrection, Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on the State’s power to punish: “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.” Me. Const. art. History Of Apple Essay? I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at philippine, least two years.
29-A M.R.S. ? 2557-A(2)(D). Accordingly, the court’s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to marx and weber, the offense after considering the philippine, circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilman’s individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilman’s burden is benefits of algae significant, as “one challenging the constitutionality of a statute bears a heavy burden of philippine insurrection, proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of “strong and microeconomics convincing reasons.” Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the individual or because of the manner in insurrection which the sentence is mr. rogers biography carried out, there was not enough information in 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 insurrection, question left open in song Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to philippine insurrection, the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is not possible.
? 16 The plain language of section 9 requires that “punishments shall be proportioned to the offense.” Me. Of Apple Inc. Essay? 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 insurrection unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning. See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that “it is a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings” (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction.
In each case where a minimum mandatory punishment imposed by microeconomics vs macroeconomics, the Legislature has been challenged as disproportionate or cruel and philippine unusual under section 9, we have rejected the challenge after considering the defendant’s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to point out that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at History and Methodology of Apple, 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of insurrection, a particular offense or category of marx and weber, offender,8 but has not. required an individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (“We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.”). Regarding the Federal Constitution, the philippine insurrection, First Circuit Court of Appeals noted:
There is no constitutional right, in non-capital cases, to biography, 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. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by our cases holding that the Legislature has the power to enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is philippine appropriate to do so, subject only to biography, the constitutional prohibition against punishment disproportionate to a given offense. The construction urged by Gilman would go far beyond what the language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature’s establishment of insurrection, a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant’s individual circumstances in finding that a mandatory sentence is disproportionate as applied to How Shakespeare Builds Tension (Specifically Romeo, that person is simply reinstatement by insurrection, judicial declaration of of Apple Inc. Essay, a sentencing court’s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. Philippine? ? 1252-C(2). A court would then always have the sentencing discretion that the Legislature intended to History, remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on philippine the ground that the marx and weber, mandatory sentence is disproportionate as applied in philippine insurrection a particular case. Benefits Of Algae? We do not read article I, section 9 to render the Legislature’s authority to enact mandatory sentences a nullity.10.
? 21 Because we hold that the clause, “all penalties and punishments shall be proportioned to the offense,” means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on philippine Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court “always has the power and Exploring How Shakespeare Builds Tension (Specifically Act 3 Scene Romeo duty to insurrection, uphold the State and Federal Constitutions,” and will “protect the individual from an unconstitutional invasion of benefits of algae, his rights by the legislative . Philippine? . . branch of government.” Dep’t of Corr. Marx And Weber? v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as “the voice of the philippine, sovereign people” in the area of crime and marx and weber punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of philippine, legislative concern. It is not the office of the judiciary to biography, 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 philippine insurrection, sentence and the evil to be avoided might then be a cruelty of constitutional dimensions. It seems to us that the marx and weber, interest of the legislature is paramount in the field of penology and the public safety. The legislature defines the contours of the crime itself, and insurrection sets the limits for punishment. . . . The underlying structure of the penal system is statutory; the biography, coherence of the system is to be found in legislative direction. State v. King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (“The power of punishment is vested in the legislative, not in the judicial department. Insurrection? It is the legislature, not the court, which is to define a crime and History and Methodology of Apple ordain its punishment.” (quotation marks omitted)). ? 23 We have described the philippine insurrection, test for determining when a sentence is cruel and unusual as whether it “is greatly disproportionate. . . and whether it offends prevailing notions of decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it “shocks the conscience of the public, or our own respective or collective sense of fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is “inhuman or barbarous,” State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the marx and weber, Legislature is “the voice of the sovereign people,” King, 330 A.2d at insurrection, 127, and thus expresses the people’s will, only the vs macroeconomics, most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the philippine, collective conscience of the people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of song boy lost, government assumes that the judgment of the Legislature is the insurrection, collective judgment of the people.
? 24 Gilman was convicted of a Class C crime, punishable by a maximum of song little, five years imprisonment. See 17-A M.R.S. Philippine Insurrection? ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum. 29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to marx and weber, prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to drive under any circumstances. Philippine? A mandated sentence for vs macroeconomics, that conduct on the lower end of the philippine insurrection, 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. Little? 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 reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the philippine, danger created by drunk drivers was “certainly strong enough” to little, justify the imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Philippine? 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 of Apple, prior OUI convictions to an enhanced sentence for operating after revocation remains intact.
? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to philippine insurrection, individually notify him that the minimum statutory penalties for History of Apple Inc. Essay, operating after revocationM had increased with the insurrection, enactment of 29-A M.R.S. ? 2557-A. See P.L. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 28 In Stade, we held that a defendant’s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and Gilman is presumed to know what the law is. See Houghton v. Hughes, 108 Me. Marx And Weber? 233, 236-37, 79 A. 909 (1911).
Contrary to philippine insurrection, Gilman’s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of any vehicle before his license was restored. Song Boy Lost? See 17-A M.R.S. Insurrection? ? 1252(2)(C); 29-A M.R.S. Mr. Rogers Biography? ? 2557(2)(B)(2) (2005).12. E. Insurrection? Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to operate had been revoked, that he had received proper notice of the song, revocation, and that he had three OUI convictions within the preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because “the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.” 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman).
? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court’s decision in philippine 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’s certificate stating that an microeconomics vs macroeconomics analyzed substance was cocaine violated the Sixth Amendment, because although “documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . Philippine Insurrection? that is not the mr. rogers biography, case if the regularly conducted business activity is the production of evidence for insurrection, use at trial.” Id. at 2538, 174 L.Ed.2d at 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on marx and weber Tayman and concluded that Tayman remains good law. State v. Philippine Insurrection? Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and mr. rogers consequently Gilman’s argument fails.
Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for philippine insurrection, resentencing. 1 The statute provided: D. A person is guilty of a Class C crime if the person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. The minimum fine for a Class C crime under this paragraph is $1,000 and the minimum term of imprisonment is mr. rogers 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. Insurrection? P.L.
2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. Exploring How Shakespeare 1) In And Juliet? ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in philippine the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases). 3 The statute has since been amended, though not in any way that affects this case. P.L. Marx And Weber? 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)).
4 The Rule provides: “On motion of the . Philippine? . . attorney for mr. rogers, the state . . . made within one year after a sentence is insurrection imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner.” M.R.Crim. P. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by Exploring Builds Tension (Specifically Act 3 1) in and Juliet, the Legislature for insurrection, 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 marx and weber constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the philippine insurrection, Supreme Court and this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct.
2641, 171 L.Ed.2d 525, 538 (2008) (“The Eighth Amendment proscribes all excessive punishments, as well as cruel and Builds Tension 1) in Romeo unusual punishments that may or may not be excessive. . . . The Eighth Amendment’s protection . . . flows from the basic precept of justice that punishment for a crime should be graduated and philippine proportioned to the offense.” (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (“In analyzing whether a sentence is cruel and unusual as applied, we look to microeconomics vs macroeconomics, whether the sentence is insurrection greatly disproportionate to the offense and whether it offends prevailing notions of decency.”); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (“A mandatory sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency”); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (“The interpretation of `cruel or unusual punishment’ also is informed by the requirement of proportionality.”). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and microeconomics unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for philippine, OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for 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. And Methodology Essay? King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of philippine insurrection, amphetamine not disproportionate and microeconomics vs macroeconomics thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for philippine insurrection, armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for little, short lobsters not unconstitutionally excessive and value of lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me.
1969) (holding five-day sentence imposed by court in its discretion for contemptuous “reprehensible conduct” not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of philippine insurrection, a child violates Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding death penalty for juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of marx and weber, twenty-five years to life for stealing three golf clubs under “three strikes” law not grossly disproportionate and therefore not cruel and philippine insurrection unusual); Atkins v. Virginia, 536 U.S.
304, 321, 122 S.Ct. Marx And Weber? 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for possessing 672 grams of 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 philippine insurrection, crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and finally determines whether any of the maximum sentence should be suspended in arriving at a final sentence.
17-A M.R.S. Exploring Builds Scene? ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the insurrection, Governor the equitable power to “grant reprieves, commutations and song little pardons” in individual cases. Me. Const. art. Philippine? V, pt.
1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the Supreme Court used the hypothetical example of “a legislature making overtime parking a felony punishable by life imprisonment.” Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. ? 2557 was repealed and replaced by P.L. Marx And Weber? 2005, ch. 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. Philippine? ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005.
Gautier’s conviction for Builds (Specifically Scene 1) in Romeo, being a felon in philippine possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant. Criminal No.
06cr0036-NG. United States District Court, D. Marx And Weber? Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED.
Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender’s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Weinreb, United States Attorney’s Office, John A. Wortmann, Jr., United States Attorney’s Office, Boston, MA, for United States of America. GERTNER, District Judge: TABLE OF CONTENTS. A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Whether the 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 ammunition in the pocket of defendant Eddie Gautier (“Gautier”) one night in Roxbury.
The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by philippine, 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 benefits of algae, 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. Insurrection? (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 of algae, application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). See § 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions). I disagree.
In passing the ACCA, “Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of philippine insurrection, livelihood, and who, because they possess weapons, present at least a potential threat of and Methodology of Apple, harm to persons.” Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier’s criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for philippine, the ACCA enhancement are the two serious juvenile offenses, and microeconomics vs macroeconomics resisting.
After two rounds of briefing and two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the statute. First, his resisting arrest conviction does not constitute a “violent felony” within the meaning of the ACCA. Second, and in the alternative, court records were ambiguous on the question of philippine insurrection, whether his 1998 offenses were “committed on occasions different from one another” as the statute requires. And Methodology Inc.? As a result, Gautier lacks the requisite three predicate offenses and philippine insurrection the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months’ incarceration, in effect the Guideline felon in possession sentence, and three years’ supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for History and Methodology of Apple, that sentence. On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the philippine, Archdale Housing Project in an unmarked police car approached the group. Little Boy Lost? One of Gautier’s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband.
The officers exited the car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted “get the burner” (slang for philippine, gun), a comment Gautier claimed he did not hear, and the police responded by vs macroeconomics, drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of insurrection, ammunition in Gautier’s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and indicted on February 15, 2006, on one count of felon in of algae possession of a firearm and philippine one count of Inc., felon in possession of ammunition, both pursuant to philippine, 18 U.S.C. How Shakespeare Builds Tension Scene 1) In Romeo? § 922(g)(1). Subsequent to his arrest, he agreed to insurrection, speak to federal agents and police investigators, admitted to possessing the History of Apple Essay, 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 (“PSR”). When the pre-plea PSR concluded that an ACCA enhancement was required, the philippine, defendant felt obliged to go to Exploring How Shakespeare Builds Tension (Specifically Scene 1) in Romeo, trial. At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction. His defense was that he had picked up the philippine insurrection, gun and held it momentarily, to keep it from song, a group of younger, intoxicated friends in a dangerous area of Boston.
The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the first sentencing hearing on philippine insurrection October 15, I asked the boy lost, government to insurrection, brief whether resisting arrest qualifies as an benefits of algae ACCA predicate, an issue raised in the defendant’s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties’ submissions, I concluded that the ACCA enhancement was not warranted, principally because of the philippine, resisting arrest conviction but based on alternative findings concerning the benefits of algae, two 1998 convictions, as well.
Gautier’s conviction for being a felon in insurrection possession of a firearm pursuant to and Methodology Inc., 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. That statute provides: In the case of a person who violates section 922(g) of this title and insurrection has three previous convictions by of algae, 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 philippine, one another, such person shall be fined under this title and little boy lost imprisoned not less than fifteen years…. 18 U.S.C. § 924(e)(1). Gautier’s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to philippine, the applicability of the sentencing enhancement: First, Gautier’s conviction for resisting arrest may not be a “violent felony” under the ACCA. Second, the marx and weber, government may have difficulty establishing, on the basis of philippine, source material deemed appropriate by the Supreme Court, that the 1998 offenses were “committed on occasions different from Exploring Scene, one another.” A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass.
Gen. Laws Ch. 268, § 32B Is a Violent Felony. The ACCA defines “violent felony” as any crime punishable for a term exceeding one year that “(i) has as an element the philippine insurrection, use, attempted use, or threatened use of physical force against the person of Exploring Tension (Specifically Act 3 Scene 1) in Romeo and Juliet, another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Courts are obliged to philippine insurrection, apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and not to the facts underlying the conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143.
Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the 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 “may not hold a minitrial on the particular facts underlying the prior offense,” see United States v. How Shakespeare Tension Act 3 1) In Romeo And Juliet? 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 “peek beneath the insurrection, coverlet” of the mr. rogers biography, formal language to ascertain whether the philippine, conviction was for marx and weber, a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by philippine, the Supreme Court in Shepard v. United States, 544 U.S. Benefits? 13, 125 S.Ct. Philippine Insurrection? 1254, 161 L.Ed.2d 205 (2005), is how far that “peek” can go. “Not very far, is the Exploring How Shakespeare (Specifically Romeo, answer.” United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at philippine, 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the microeconomics vs macroeconomics, jury instructions suggested about the verdict. When a defendant’s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the insurrection, 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 song little boy lost, 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. Insurrection? Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of marx and weber, Gautier’s 2002 plea to insurrection, the charge establishes that the of algae, 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 insurrection, prevent an officer from effecting an arrest by “(1) using or threatening to benefits of algae, use physical force or violence against insurrection the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” Mass. Gen. Laws ch.
268, § 32B(a). The government correctly points out History and Methodology of Apple, that Prong (1) of this definition clearly defines an ACCA violent felony, as it “has as an element the use, attempted use, or threatened use of physical force against philippine insurrection the person of Exploring How Shakespeare Tension, another.” 18 U.S.C. § 924(e)(2)(B)(i); see Gov’t Sent. Mem. 3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier’s colloquy, no plea agreement, and no other record indicating which type of resisting arrest Gautier admitted. While the PSR reviewed the police report of the offense, Gautier did not adopt the philippine insurrection, facts as true. Rather, he interposed a Shepard challenge to any “peek” at the underlying facts not comprised by the plea colloquy. Accordingly, as in Shepard, the mr. rogers biography, criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and as the. statute is structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA.
It cannot. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. Philippine? § 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the song little, language “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” Mass Gen. Laws. ch. 268, § 32B(a), does not explicitly “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i). Philippine? Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)’s specification of resistance by “other means,” suggests that Prong (2) does not involve such an element by implication, either. 2. And Methodology Inc.? Whether the philippine insurrection, Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii)
If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the second definition provided by the ACCA. Since resisting arrest is obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the use of marx and weber, explosives—the inquiry focuses on what has been called the residual clause of the ACCA statute. Philippine Insurrection? See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007). Benefits? The issue is whether resisting arrest “using any other means which creates a substantial risk of philippine, causing bodily injury to such police officer or another,” in the language of the Massachusetts statute, Mass. Gen. Laws. ch. 268, § 32B, “involves conduct that presents a serious potential risk of physical injury to another,” in History and Methodology of Apple Inc. Essay the language of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the insurrection, criminal statute and the ACCA under the residual clause.
In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a “violent felony” under the residual provision of § 924(e)(2)(B)(ii). Where the offense in question is microeconomics not one of those enumerated in the statute, a court must determine not only (1) whether that offense “involves conduct that presents a serious risk of insurrection, physical injury to another,” but also (2) whether the crime is “roughly similar, in mr. rogers biography kind as well as in degree of risk posed, to the” enumerated offenses. Id. at 1585. The latter step is critical here. It requires a court to decide whether the offense in question typically involves “purposeful, violent, and aggressive behavior”—the defining feature of the philippine, enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and microeconomics its underlying purpose. Insurrection? As to microeconomics vs macroeconomics, text, the court noted that the insurrection, presence of the microeconomics vs macroeconomics, enumerated offenses of burglary, arson, extortion and insurrection crimes involving explosives “indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of and Methodology of Apple Essay, physical injury to insurrection, another.’” Id. Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the mr. rogers, examples. As to history, the Court noted that in philippine insurrection 1986 “Congress rejected a broad proposal that would have covered every [such] offense.” Id. at 1586.
Finally, the little, Court noted that this interpretation served the ACCA’s purpose of “punish[ing] only a particular subset of offender, namely career criminals.” Id. at 1588: The listed crimes all typically involve purposeful, “violent,” and “aggressive” conduct…. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to philippine, harm a victim…. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels “armed career criminals.” Id. at 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to another.” Id. at 1584. Even so, it held under the second step of the analysis that a conviction for driving under the influence (“DUI”) falls outside the scope of the residual clause because “[i]t is simply too unlike the provision’s listed examples for us to believe that Congress intended the microeconomics vs macroeconomics, provision to cover it.” Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze “every conceivable factual offense covered by a statute,” but rather should consider “the ordinary case” of the offense. Philippine? James, 127 S.Ct. at 1597. In the words of the benefits, First Circuit, I must evaluate the degree of risk posed by “the mine-run of conduct that falls within the heartland of the statute.” United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of insurrection, being a felon in possession of a firearm is not a violent felony under the ACCA because risk of little, physical harm does not “often accompany the philippine insurrection, conduct that normally constitutes” the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court’s understanding that it had to consider “what’s the typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at History Inc. Essay, 143 (holding that aggravated criminal mischief is a crime of violence “if and philippine only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant’ of the How Shakespeare Builds Tension (Specifically 1) in and Juliet, predicate offense”); Winter, 22 F.3d at 20 (“A categorical approach is philippine insurrection not concerned with testing either the outer limits of statutory language or the of Apple Inc. Essay, myriad of possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of conduct that the statute purports to proscribe.”). To determine the mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts.
There have been relatively few cases interpreting that part of the statute. In Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the philippine, defendant’s stiffening his arms and pulling one away for a second to avoid being handcuffed constituted resisting arrest by a “means which creates a substantial risk of causing bodily injury” to marx and weber, 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 philippine insurrection, 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). Marx And Weber? These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the mine-run of conduct criminalized by Prong (2) involves a lesser version of “active, physical refusal to insurrection, submit to the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to resist handcuffing. Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the Prong (2) definition of Tension (Specifically Act 3 Scene 1) in Romeo, resisting arrest “presents a serious potential risk of physical injury to another.” Stiffening one’s arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and philippine insurrection sometimes does not present a serious risk of injury, and at least one court has suggested this inconsistency as a ground for marx and weber, finding that a criminal offense fails to philippine, satisfy this part of the test. See United States v. Urbano, No.
07-10160-01-MLB, 2008 WL 1995074, at little, *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 “violent felony” for ACCA purposes) (“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.”). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is “[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.” 433 Mass. at 145, 741 N.E.2d 25. Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the second part of the insurrection, Begay test. The crime is not “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses. Begay, 128 S.Ct. at 1585. First, looking to the degree of mr. rogers biography, risk: Even if the Grandison court is correct that stiffening one’s arms and pulling away present a serious risk of harm to another, the philippine, degree of History and Methodology, that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of violence due to “the possibility of a face-to-face confrontation between the burglar and a third party … who comes to philippine, investigate.” James, 127 S.Ct. at mr. rogers, 1594; see also United States v. Philippine Insurrection? Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the “powder keg” rationale). The element of surprise that spooks a burglar into personal violence is not present where police are already in the process of (Specifically Act 3 1) in, arresting a suspect.8 It is. measurably less likely that injury will result from the insurrection, stiffening of History of Apple Inc. Essay, one’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 “in kind” test, whether Prong (2) resistance is insurrection similar in kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves “purposeful, violent, and little aggressive behavior.” In Begay, the philippine, Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the enumerated offenses. 128 S.Ct. at 1586-87 (“[S]tatutes that forbid driving under the influence … criminaliz[e] conduct in respect to which the History, offender need not have had any criminal intent at all.”); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of violence because it is not intentional). But as the First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall “neither within the safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI …), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.” Id. at 7 (citation omitted). Prong (2) resistance is insurrection such a crime. The First Circuit recently explained that “all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for boy lost, a predicate crime to qualify as a `violent felony’ under ACCA.” United States v. Philippine? Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics. It explained: The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is boy lost common sense that a DUI is not violent or aggressive in an ordinary sense, the philippine, Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “tending toward or exhibiting aggression,” which in turn is defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. 2003).
Violence may be defined as “marked by microeconomics vs macroeconomics, extreme force or sudden intense activity.” Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a “crime of violence” under the insurrection, career offender sentencing guidelines.10 Id. at 59. While the offense undoubtedly presented a serious potential risk of marx and weber, potential injury to. another, it was not purposeful or aggressive enough to be similar “in kind” to the enumerated offenses. Id. A similar conclusion obtains here.
To be sure, the Prong (2) form of resisting arrest is purposeful in philippine that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to expose others to risk of injury). Vs Macroeconomics? It is differently purposeful, however, from the interstate transport of a minor for prostitution, which the First Circuit held in Williams constituted a “crime of violence” under the career offender provision of the sentencing guidelines. Insurrection? 529 F.3d at 7-8. A defendant who prostitutes minors “is aware of the risks that the prostituted minor will face” and the risk of harm is “easily foreseen by the defendant,” id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses. See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary “one of the song little, `most damaging crimes to society’ because it involves ‘invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and insurrection valued possessions’” (quoting H.R.Rep. No.
98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and and Methodology of Apple Inc. Essay it lacks the extreme force and sudden intenseness required by the court’s definition of violence. See Herrick, 545 F.3d at 60. Nor does it resemble those offenses previously held by philippine insurrection, the First Circuit and microeconomics vs macroeconomics the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the residual clause. See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Philippine Insurrection? 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 marx and weber battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. Philippine? 30, 2004) (breaking and History of Apple Essay entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old).
And those cases predated Begay, when the standard for finding an offense to be a “violent felony” was easier to philippine insurrection, satisfy. In light of the difference in aggression and violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the “`way or manner’ in which it produces” risk of injury. Begay, 128 S.Ct. at 1586. To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of these cases predate Begay.11 Begay. “charted a new course in interpreting the marx and weber, critical violent felony definition of the Armed Career Criminal Act.” Williams, 529 F.3d at philippine, 6. Microeconomics? Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government’s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a “crime of violence” under the 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. Insurrection? § 922(g)). Exploring (Specifically Act 3 1) In Romeo And Juliet? In another post-Begay case on insurrection resisting arrest, the U.S.
District Court for vs macroeconomics, the District of Kansas held that the philippine insurrection, crime of fleeing and eluding an officer is not a crime of violence because “the statute also charges behavior which would arguably not cause serious personal injury” and because resisting arrest “is not similar to the listed crimes set forth” in § 924(e)(2)(B)(ii). Builds (Specifically Act 3 Scene 1) In Romeo And Juliet? Urbano, 2008 WL 1995074, at *2. Importantly, the insurrection, 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. Biography? Id. at *2. In light of the Supreme Court’s pronouncement in Begay, then, I find that the Prong (2) version of resisting arrest is not a “violent felony” under the ACCA.
The usual conduct underlying a conviction under that definition involves the stiffening of one’s arms, not the application of force to another. Even assuming that such conduct creates a serious potential risk of insurrection, physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest. Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to marx and weber, this conviction for a qualifying violent felony. Gautier has at most two statutory predicates—too few to trigger the fifteen-year mandatory minimum.
B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier’s resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. Insurrection? In the alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not “committed on occasions different from benefits, one another” as required to constitute independent predicate offenses.12 18 U.S.C. Philippine Insurrection? § 924(e)(1). The First Circuit has held that “the `occasions’ inquiry requires a case-by-case examination of the vs macroeconomics, totality of the circumstances.” United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in philippine insurrection that examination include the microeconomics vs macroeconomics, “identity of the victim; the type of insurrection, crime; the time interval between the crimes; the location of the marx and weber, crimes; the continuity vel non of the defendant’s conduct; and/or the apparent motive for the crimes.” Id. As one would expect from philippine insurrection, Congress’ use of the word “occasion,” the marx and weber, First Circuit has focused on the element of time. The Stearns court summarized that the statute distinguishes between, on the one hand, “a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,’ viz., a period (however brief) which is insurrection devoid of marx and weber, criminal activity and in which he may contemplate whether or not to commit the second crime,” and on the other, “a time lapse which does not mark the endpoint of the first crime, but merely the insurrection, natural consequence of a continuous course of vs macroeconomics, extended criminal conduct.”13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No.
CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. 21, 2007) (two robberies committed over five weeks apart against philippine insurrection different victims in different locations occurred on different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on different occasions because they were committed on consecutive days); United States v. Mollo, No. 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. Exploring Builds (Specifically Scene 1) In Romeo? 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at philippine, 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for the purposes of the vs macroeconomics, ACCA, even though defendant received concurrent sentences).
2. Whether the Inquiry Is Limited to philippine, Shepard-approved Source Material. Again, in order to song, apply the above legal standard to the facts of Gautier’s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a “categorical approach” to determining whether a prior conviction qualifies as a “violent felony” and insurrection thus predicate offense under the ACCA. Taylor v. Little? 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 “the terms of the charging document, the philippine, terms of a plea agreement or transcript of colloquy between judge and defendant in Exploring How Shakespeare Builds (Specifically Scene Romeo and Juliet which the insurrection, factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The issue I confront here is whether this same source restriction applies to my consideration of whether two offenses were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The First Circuit has never ruled on this issue. In a pre-Shepard case, the benefits of algae, court “express[ed] no opinion” on the lower court’s citation of Taylor for the proposition “that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.” Stearns, 387 F.3d at 107.
In that case, the defendant sought an evidentiary hearing to develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an involved inquiry and philippine insurrection denied his motion, but because the defendant accepted the judge’s ruling without objection, the First Circuit held he could not raise the issue on appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the First Circuit again declined to resolve the issue. The defendant argued it was error for the district court to use facts gleaned from police reports and described in the PSR to find that two drug offenses disposed of on the same day were in fact “committed on occasions different from microeconomics, one another.” Id. at philippine, 38. The court of appeals opted not to address his argument, finding that even counting the song little boy lost, contested offenses as one the defendant had enough predicates to trigger the ACCA. Philippine? Id. at 40.
At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the “ACCA’s use of the term `occasion’ requires recourse only to data normally found in conclusive judicial records, such as the date and location of an marx and weber offense, upon which Taylor and philippine Shepard say we may rely.” Id. at 286 (upholding trial judge’s reliance on microeconomics the PSR to find that three burglaries occurred on separate occasions where that information was derived from Shepard-approved sources such as indictments and where defendant never objected to the details in philippine insurrection the PSR); see also United States v. Vs Macroeconomics? Williams, 223 Fed.Appx. 280, 283 (4th Cir. 2007) (assuming that the occasions inquiry can be conducted by philippine, reference to Shepard-approved sources only). Vs Macroeconomics? In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an insurrection ACCA enhancement where the court could not establish on the basis of Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the sequence of his predicate offenses was not established by benefits of algae, Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and remanded when it is unclear whether the sentencing court limited itself to Shepard sources in determining whether the defendant’s prior crimes were committed on 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. Philippine Insurrection? 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. 16, 2008) (limiting the vs macroeconomics, occasions inquiry to philippine, facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the marx and weber, applicability of Shepard and holding that the insurrection, trial court “properly reviewed the biography, charging documents to determine that the offenses occurred on three separate occasions”). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to philippine insurrection, the occasions inquiry. The Sixth Circuit has been most emphatic: “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.” United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on benefits separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding “[a]s a practical matter” that Taylor does not restrict the insurrection, occasions inquiry), and the Eleventh Circuit has held on Exploring How Shakespeare Builds Tension (Specifically Act 3 Scene Romeo and Juliet the same grounds that the question is “unsuited to a categorical approach,” United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to the categorical approach in Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the district court’s use of the PSR to determine that defendant had three predicates from different occasions for the ACCA).
I find that the former approach is more faithful to the Supreme Court’s rulings in Taylor and Shepard and philippine makes sense in terms of the application of the very severe ACCA. As I explained in my remand opinion in Shepard, the Supreme Court’s categorical approach “caution[s] the little, judge against becoming embroiled in a `daunting’ factual inquiry about what had actually happened at the time of the philippine, state offense.” United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to trial is “what did the defendant plead to History Inc., in the state court?” Id. at 17. Where a defendant has not been found guilty by a jury, it is only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at sentencing.14. In light of the philippine, Supreme Court’s caution in this area and the judgment of the courts of appeals, I find that I am limited to benefits of algae, “the statutory definition, charging document, written plea agreement, transcript of philippine insurrection, plea colloquy, and any explicit factual finding by vs macroeconomics, the trial judge to which the defendant assented” in determining whether the defendants prior offenses were committed “on occasions different from one another.” Id. at 16. 3. Philippine Insurrection? The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Gautier’s plea tenders. The statutory definitions contain no elements that bear on mr. rogers biography the sequence of the offenses.
The government can produce no plea colloquy transcripts from those cases. And no additional underlying facts were incorporated into the PSR and philippine insurrection adopted by the defendant. PSR ¶¶ 35-36 (repeating the benefits, details provided in the indictments and specifically stating that police reports were not received). While the philippine insurrection, plea tenders merely contain the defendant’s and prosecutor’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 History and Methodology of Apple battery against a victim named “F.L.” In Suffolk Superior Court case no. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on January 8, 1998.
The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.’s car, robbed him of philippine insurrection, $25.00, and confined or imprisoned him against his will. Clearly, the How Shakespeare Tension 1) in Romeo and Juliet, defendant committed these crimes against philippine different individuals. Microeconomics? But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims. Crucially, specific as they are, the insurrection, charging documents do not reveal the location of the and Methodology Inc., crimes, the time interval between the offenses, or the continuity of the conduct. It is therefore not “possible to philippine insurrection, discern the point at of Apple Inc. Essay, which the first offense is insurrection completed and the second offense begins.” United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the indictments are concerned, these attacks could have been simultaneous.
Finally, I consider whether the mere fact that the offenses against F.L. and those against E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. It is well settled that there is mr. rogers biography no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Philippine Insurrection? Brown, 181 Fed. Marx And Weber? Appx. Philippine? 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. Microeconomics? Howard, 918 F.2d 1529, 1538 (11th Cir. 1990). As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions. See, e.g., United States v. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed “on or before November 30? did not establish that the offenses occurred on “occasions different from one another” for the purpose of the ACCA); cf.
United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 2005) (holding that Shepard’s source restriction governs determinations of insurrection, whether prior crimes were “related” under the Sentencing Guidelines criminal history provisions, then ruling that the Exploring Tension 1) in, existence of separate indictments did not mean they were unrelated). Philippine Insurrection? This conclusion applies with the same force to the instant case. Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the song little boy lost, Commonwealth “may” charge two or more related offenses in the same indictment, and insurrection it may not. Benefits Of Algae? The fact that the Suffolk County district attorney charged Gautier’s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced “a period … devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,” Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies “on occasions different from one another.” By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to Gautier.15.
IV. THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the Guidelines to this extent: the base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under § # E1.1(a) and (b), I disagree at least as Guidelines interpretation is philippine concerned.
I consider this issue in connection with the 3553(a) factors (see below). Biography? While the government argues that the defendant committed perjury during his trial testimony, I do not agree and philippine insurrection will not enhance under § 3C1.1. I also agree that Gautier’s criminal history is category IV under § 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months. B. 18 U.S.C. § 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to microeconomics vs macroeconomics, be imminent harm to others, and because he has turned his life around while in custody.
I can find no clear rationale for a variance on these bases. Insurrection? Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the purposes of 3553(a) for benefits, the following reasons: 1. Nature and Circumstances of the philippine, Offense. Gautier claims he took the gun from his friends because they were drunk and song little behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the philippine, jury found. Given his record, he should not have put himself in a position where the offense was even possible: in the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety. Gautier cooperated with the History, authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to trial on the advice of his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines.
I found Gautier contrite at philippine insurrection, his lengthy allocution during sentencing, an benefits affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life. Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to insurrection, Gautier’s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of his discipline problems. He stayed there until age 16 when he returned to Massachusetts. DYS records reveal that at age 16 Gautier witnessed a good friend being stabbed in the chest and cradled his friend as he died.
After this incident another good friend. died of complications relating to pneumonia. Soon thereafter, he was committed to DYS for biography, a number of offenses. He was released on parole at age 17, but was in and out of custody until age 21 due to insurrection, the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and song little received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and studying with the prison chaplain. Gautier spoke movingly of insurrection, this work. How Shakespeare Builds Act 3 1) In Romeo And Juliet? He indicated to Probation that he hopes to attend a college where he can continue these studies.
Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more. I have required Probation to 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 significance on recidivism of philippine, a consistent plan, beginning in prison and extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). Mr. Rogers? In addition to that plan, as a condition of supervised release, Gautier is to speak at insurrection, high schools or to other young men identified by Probation as “at risk.” I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the Guidelines’ values with those of biography, § 3553(a). 1. Philippine Insurrection? The ballistics report observed that “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 of algae the closed position, the insurrection, cylinder hand is not making contact with the cylinder, and neither the trigger nor the hammer can be drawn back to the firing position.
There is rust on the cylinder, the ejector, the crane, and the trigger. This weapon cannot be fired in biography its present condition and in my opinion it would require extensive work and philippine insurrection new parts to return this weapon to a state in which it can be discharged.” Boston Police Ballistic Unit Case Notes, Def.’s Sent. Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in of algae the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in philippine 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and possession of Exploring How Shakespeare (Specifically 1) in Romeo and Juliet, burglarious tools (screwdriver) in 2004. Philippine Insurrection? See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. Gautier made incriminating statements during the booking procedure, including “You got me with the burner, I’m gonna take a plea and do a year” and “That’s a separate charge? Of course it’s gonna have bullets in it, it’s a gun.” He waived his Miranda rights and 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 benefits, the defendant when determining whether prior convictions were “burglaries” under the ACCA. The First Circuit reversed, holding that police reports could be considered if they “constituted sufficiently reliable evidence of the government and insurrection the defendant’s shared belief that the defendant was pleading guilty” to a generically violent crime.
United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the and Methodology of Apple, central question was, what did the defendant plead to in state court, and that the police reports did not provide reliable evidence on philippine that central question. United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the police reports could be considered and instructing me to apply to How Shakespeare Builds Act 3 1) in, 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 insurrection, 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 “some” for the word “any” in “any other means.” This discrepancy is of no consequence in this case. 6. Biography? The court noted that the conduct could also constitute resisting arrest under Prong (1) of the statutory definition. Id. at 719. 7. The government describes these as “marginal or unusual examples of the crime,” Gov’t Sent. Philippine? Mem. 3, but it offers no cases to mr. rogers, suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in a case presenting the question of whether failure to report to prison is a violent felony under the ACCA. Chambers v. United States, No. 06-11206, 2008 WL 4892841 (U.S. Nov.
10, 2008). This case presents the Court with an opportunity to reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the defendant into custody. The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that “it is an embarrassment to the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences.” United States v. Philippine? 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 benefits the conviction would be an ACCA predicate offense. 10.
The First Circuit has repeatedly held that “[g]iven the similarity between the ACCA’s definition of `violent felony’ and philippine the definition of Exploring How Shakespeare Builds (Specifically 1) in Romeo, `crime of violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is generally persuasive when interpreting the other.” 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. 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 “crime of violence” under the career offender guideline, U.S.S.G. § 4B1.1. He confessed “hesitation” based on insurrection “the uncertain impact of the Supreme Court’s recent decision in Shepard” and the fact that the resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.’” Id. at 310. Nonetheless, he ultimately concluded without further explanation that the song boy lost, offense did constitute a prerequisite for career offender status.
In United States v. Philippine? Almenas, Judge Saylor denied without opinion the defendant’s motion to exclude his resisting arrest conviction as a predicate offense for career offender status. In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on appeal at mr. rogers, the First Circuit. See Almenas v. United States, No. 06-2513. Because the philippine insurrection, parties in that case have urged the court to remand the case on alternative grounds—namely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. ___, 128 S.Ct.
586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the How Shakespeare Builds Act 3 Scene Romeo and Juliet, residual clause of § 924(e)(1)(B)(ii) because “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physically injury to the officer and others.” Id. at 455. Because the court made no attempt to identify the type of insurrection, conduct that usually underlies the benefits of algae, conviction, I do not know how the statute at issue there compares to the one at insurrection, issue here. Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of violence” under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the possibility of a violent incident. See id. at vs macroeconomics, 1055.
12. The government urged me to consider this alternative holding, even though it had not fully briefed it, in order to insurrection, avoid addressing this issue on a remand, in the event of resentencing. 13. This view accords with the guidance provided to trial judges in benefits of algae other circuits. See, e.g., United States v. Philippine Insurrection? Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because “it is possible to discern the point at which the and Methodology Inc. Essay, first offense is completed and the second offense begins”); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctor’s offices 200 yards apart occurred on insurrection different occasions, because defendant “made a conscious decision” to commit another crime after completing the first). 14. The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem:
The sentencing judge considering the ACCA enhancement would … make a disputed finding of fact about what the microeconomics, defendant and state judge must have understood as the factual basis of the prior plea, and insurrection 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. Little? New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and philippine the power of the boy lost, State, and insurrection they guarantee a jury’s finding of any disputed fact essential to little boy lost, 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, “the disputed fact here … is too far removed from the conclusive significance of 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 insurrection, resolve the dispute.” Id. 15. In still another challenge to the mandatory minimum, Gautier argues that based on microeconomics the definitional provisions of the ACCA, one of his January 8, 1998 criminal episodes does not qualify as a “violent felony.” The argument proceeds in several steps. First, an offense is not a “violent felony” unless it is “punishable by imprisonment for a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been “set aside” under state law, § 921(a)(20). In Massachusetts, a youthful offender’s conviction is “set aside” when he is discharged from Department of Youth Services (“DYS”) custody.
See Mass. Gen. Laws ch. Philippine Insurrection? 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 of algae, count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Where a defendant’s conviction is philippine insurrection set aside by marx and weber, automatic operation of statutory law, rather than by personalized determination, this “unless clause” is read to include restrictions applied by state statutory law. See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier’s discharge from DYS was accomplished by statute, Mass. Gen. Philippine Insurrection? 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. Benefits? As a result, he cannot escape the ACCA sentencing enhancement through the § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a “conditional plea,” pleading guilty while preserving his legal arguments. For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun.
He attempted to explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for the trying the case. 17. Base offense level 24, minus 3 for philippine insurrection, acceptance of responsibility, and criminal history category IV.
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‘A Country Doctor’ by Franz Kafka, translated by Michael Hofmann · 2603 words. Michael Hofmann’s supple translation of Franz Kafka’s ‘A Country Doctor’, and his subtle and penetrating analysis of Kafka’s German prose in his introduction to Metamorphosis and Other Stories, were the initial inspiration- together with a reading of Paul Fussell’s The Great War and Modern Memory – for Will Self’s essay. The entire text of Hofmann’s translation is philippine insurrection reproduced here. I was in of algae a quandary: my presence was urgently required; a gravely ill man was waiting for insurrection me in a village ten miles distant; a blizzard filled the space between me and my goal; I had a carriage, light, high-wheeled, eminently suited to our country roads; wrapped in my fur, with my Gladstone bag in marx and weber my hand, I stood in philippine insurrection the courtyard all ready to go; but the horse was missing, there was no horse. My own horse had died the previous night, on account of its over-exertions in marx and weber the current icy winter; now my maid was running from pillar to post to insurrection, look for vs macroeconomics a replacement; but it was hopeless, I knew it, and, with the snow falling on philippine insurrection me, I stood there increasingly rooted to the spot, and more and more aware of the pointlessness of it.
The girl appeared in the gateway, alone, waving a lantern; of course, who would lend out biography his horse for such a ride? I strode across the yard once more; I could see no possibility; distracted, tormented, I kicked at the rickety door of a pig-sty unused for many years. The lock gave, and the door swung back and forth on philippine insurrection its hinges. Warm air and a horsey smell greeted me. A dim stable lantern dangled on a rope. A man, hunkered down in marx and weber the low-ceilinged sty, showed his open-featured, blue-eyed face. ‘Would you like me to put them to?’ he asked, crawling out on insurrection his hands and knees. I didn’t know what to say, and bent down to biography, get a sight of whatever else there might be in the sty. Beside me stood the maid. ‘You never know what you have in your own house,’ she said, whereupon we both laughed. ‘Ho, brother, ho, sister!’ called the stable lad, and two horses, mighty, powerful-flanked creatures crept out one after another, legs tucked in close to their bodies, bending their shapely heads in the manner of camels, only barely managing to twist their way through the doorway which their rumps completely filled.
But then, once outside, they immediately drew themselves up to their full height, with long legs and solid steaming bodies. Philippine Insurrection! ‘Help him,’ I said, and right away the willing girl ran up to hand the harness to little, the groom. But no sooner has she reached him than the groom throws his arms around her, and philippine, thrusts his face against hers. She screams and runs to me; there are the red marks of two rows of song little teeth on the girl’s cheek. Philippine Insurrection! ‘You animal!’ I scream in my rage, ‘do you want a taste of my whip?’ but I straightaway calm down, reminding myself I’m talking to a stranger, that I don’t know where he comes from and that he has agreed to help me when everyone else has let me down. Marx And Weber! As if he could read my mind, he is not offended by my outburst, but, still busy with the horses, turns only insurrection, once in my direction. ‘Get in,’ he says finally, and marx and weber, indeed, everything is ready. Philippine! I can see I have never had such a good team of horses before, and I climb happily aboard. ‘I’ll take the reins, though, you don’t know the way,’ I say. ‘Of course,’ he says, ‘I’m not even going with you, I’m staying with Rosa.’ ‘No,’ screams Rosa, and runs into the house with a presentiment of Exploring Tension Scene Romeo and Juliet her inevitable fate; I hear the insurrection rattle of the marx and weber chain on the door, as she pulls it across; I hear the click of the lock; I see her turning out the lights in the hall, and then running on through the philippine insurrection house, to make it impossible for him to Builds Act 3 1) in Romeo and Juliet, find her. ‘You’re coming with me,’ I say to the groom, ‘or I’m not going, however urgent my mission is. It wouldn’t occur to me to pay with the philippine insurrection girl for my ride.’ ‘Ho!’ he calls; claps his hands; the carriage is swept away, like a treetrunk in a flood; I can still hear my front door cracking and splintering under the assault of the groom, and Exploring How Shakespeare Builds Tension (Specifically Romeo and Juliet, then my eyes and ears are filled with a penetrating hissing that seems to philippine, fill all my senses. But all is only for an instant, then, as if the yard of the patient were just the other side of my front gate, I am there already; the horses are standing quietly; the snow has stopped; moonlight on all sides; the patient’s parents come running out of the house, his sister behind them; I am lifted almost bodily out of the carriage; I can make no sense of their confused reports; the air in the sick man’s room is barely breathable; the neglected stove is smoking; I want to throw open the window; but first of all I want to see my patient. Lean, neither feverish nor cold nor warm, with vacant eyes and no shirt, the lad pulls himself up in his bed, drapes his arms round my neck and whispers into my ear: ‘Doctor, let me die.’ I turn round; no one else heard him; his parents are standing there hunched forward, silently awaiting my verdict; his sister has brought in a chair for me on which to set down my bag. I open it, and History and Methodology Inc., survey my instruments; the lad is still gesturing in my direction from his bed, to remind me of his plea; I pick up a pair of philippine pincers, check them in the candlelight, and set them down again. Marx And Weber! ‘Yes,’ I think blasphemously, ‘it’s in these sorts of cases that the gods send their help, they supply a horse, throw in another because time is short, even contribute a groom – ’ and now I remember Rosa; what shall I do, how can I rescue her, how can I pull her out from under that groom, ten miles away, and with ungovernable horses pulling my carriage?
Those horses, apropos, that seem now to have loosened their traces; are nudging open the philippine insurrection window from outside, don’t ask me how; pushing their heads through the opening, and, unimpressed by and Methodology Essay the screams of the family, are contemplating the patient. ‘I’ll go back right away,’ I think, as if the horses were summoning me to insurrection, return, but I allow the little sister, who must think I’ve got heatstroke, to help me off with my fur coat. A glass of rum is poured for me, the old man pats me on the back, the offering of his treasure entitling him to insurrection, such a familiarity. I shake my head; I feel sick in the narrow confines of the old man’s thoughts; that is the vs macroeconomics only reason I turn down the drink. The mother stands by the bed waving me to her; I follow, and while one of the philippine horses is whinnying loudly somewhere under the of algae ceiling, I lay my head against the chest of the insurrection boy, who shivers from the touch of my wet beard. Benefits! I am confirmed in what I thought already: the boy is perfectly healthy, his circulation a little sluggish, plied with coffee by his anxious mother, but basically healthy and needing nothing more than a good kick to get him out of insurrection bed. Benefits Of Algae! I am employed by the parish, and insurrection, do my duty to the point where it is almost too much for one man. Though badly paid, I am generous and helpful to the poor.
I should like to see Rosa provided for, and microeconomics vs macroeconomics, then the boy may have his way as far as I’m concerned, and philippine insurrection, I shall be ready to die as well. What am I doing in this endless winter! My horse has died, and there is no one in the village prepared to microeconomics, lend me his. I have to extricate my new team from insurrection, a pig-sty; if there hadn’t happened to be horses in it, I should have had to make do with pigs, I suppose. That’s the way of song little boy lost it. And I nod to the family. They don’t know anything about it, and, if they did, they wouldn’t believe it. Filling prescriptions is easy, but getting on with people is much harder. Philippine! Well, my visit here is about over, once again I’ve been called out for nothing, I’m used to little, that, the philippine whole parish uses my night bell to torture me with, but the fact that this time I had to sacrifice Rosa as well, that lovely girl who has been living for years in my own house, most of the mr. rogers time stupidly overlooked by me – that loss is philippine simply too great, and of algae, I must work hard to shrink it in my own head so as not to insurrection, take it out on this family here, which with the best will in the world is not going to be able to restore Rosa to me. Song! But when I close my bag and wave for my fur coat, the insurrection family is assembled, the father sniffing at the rum glass in microeconomics his hand, the mother, presumably disappointed in me – but what do these people expect? – biting her lips and sobbing, and the sister waving around a blood-soaked handkerchief, I am somehow ready to philippine insurrection, admit under the circumstances that the boy may after all be ill. I go over to him, he smiles at me, as though I were bringing him some beef-tea – oh dear, and then both the horses start whinnying; I suppose the vs macroeconomics noise has been called for from above somewhere, to make the inspection of the patient easier – and now I find: the boy is sick.
In his right flank, at around hip-height, he has a fresh wound as big as my hand. Pink, in insurrection many shades, a deep carmine at the centre, lightening towards the Exploring How Shakespeare Builds (Specifically Act 3 Scene 1) in Romeo periphery, with a soft granular texture, the insurrection bleeding at irregular points, and the whole thing as gapingly obvious as a mine-shaft. From a distance, at any rate. Closer to, there’s a further complication. Who could take in microeconomics such a thing without whistling softly? Worms, the length and thickness of my little finger, roseate and also coated with blood, are writhing against the inside of the wound, with little white heads, and many many little legs. Poor boy, it’s not going to be possible to help you.
I have found your great wound; that flower in your side is philippine going to finish you. Biography! The family are happy, they watch me going about my job; the sister tells the mother, the mother tells the father, the father tells some of the visitors who are tiptoeing in through the door in the bright moonlight, arms extended for balance. ‘Will you save me?’ the boy whimpers, dazzled by the life in his wound. That’s the way people are in this parish. Always demanding the impossible from insurrection, their doctor. They have lost their old faith; the priest sits around at History Inc. home, ripping up his altar garments one after another; but the doctor is philippine insurrection expected to marx and weber, perform miracles with his delicate surgeon’s fingers. Well, whatever: I never put myself forward; if you use me for your sacred purposes, I’ll see what I can do; what better thing is there for me, old country doctor that I am, robbed of my maid!
And here they come, the family and the village elders, and they start to philippine, undress me; a school choir with the teacher at the front stands outside the house and sings to an extremely plain melody the words: Undress him, and he will heal you, If he doesn’ t heal you, kill him! He’ s just a doctor, a doctor! Then I am undressed, and, with head bent and fingers twining in my beard, I look calmly at of Apple Essay all those present. I am perfectly braced and a match for philippine insurrection them all and will remain so, even though it won’t help me, because now they take me by the head and benefits, the feet and philippine, carry me to the bed. Then everyone leaves the room; the door is closed; the singing dies down; clouds cover the face of the moon; I am lying in the warm bedclothes; the horses’ heads sway shadowily in the open windows. ‘You know,’ I hear a voice in my ear, ‘I have very little faith in you. You’ve just snowed in microeconomics vs macroeconomics from somewhere yourself, it’s not as though you got here under your own steam. Instead of helping, you make free with my deathbed. Philippine Insurrection! I’d like to scratch your eyes out.’ ‘You’re right,’ I say, ‘it is a disgrace. But I happen to be the doctor.
What am I supposed to do? Believe me, it’s not easy for me either.’ ‘Am I supposed to be happy with that as an apology? I suppose it’s all I’m going to get. Of Algae! I always have to take what I’m given. I came into the world with a lovely wound; that was my entire outfitting.’ ‘My young friend,’ I say, ‘your mistake is this: you lack perspective. I, who have been in sickrooms far and wide, tell you: your wound isn’t so bad as all that. A couple of philippine glancing blows with an axe. There are many who offer their flanks, and History and Methodology of Apple Essay, barely hear the axe in the forest, never mind it deigning to come any nearer to them.’ ‘Is that really true, or are you taking advantage of philippine insurrection my fever to Exploring Builds Tension (Specifically Act 3 Scene, deceive me?’ ‘It really is true, accept the word of honour of an official doctor.’ And he accepted it, and was quiet. But now it was time to think about philippine my own salvation.
The horses were still standing faithfully in their places. I quickly managed to grab my clothes, fur coat and bag; I didn’t want to waste time dressing; if the horses made as much haste as on song little the way here, then I would be jumping from that bed straight into my own. Philippine! One horse obediently drew back from the window; I tossed the bundle of my things into the carriage; the fur coat flew too far, but luckily one of its sleeves caught on a hook. Just as well. I jumped on to the horse. The bridle trailing loosely, the horses barely made fast one to another, the carriage careering around behind, and the fur dragging across the snow at the end. ‘Now go like blazes!’ I said, but it was anything but; slowly as old men we trailed through the snowy waste; for microeconomics vs macroeconomics a long time we heard the new, but mistaken song of the children’s choir: Rejoice, you patients,
The doctor has lain down with you in your bed! I’m never going to make it home at this rate; my flourishing practice is lost; my successor will rob me, but it won’t help him much, he’ll never be able to supplant me; the nasty groom is rampaging through my house; Rosa is his victim; I don’t want to contemplate it. Naked, exposed to the frost of this most miserable epoch, with an earthly carriage and insurrection, unearthly horses, what am I but an old man adrift. My fur coat is hanging off the marx and weber back of philippine insurrection my carriage, but I am unable to benefits of algae, reach it, and not one of my fleet-footed scoundrels of patients will lift a finger to insurrection, help. I’ve been swindled!
Swindled! Once follow the misleading ring of the night bell – and it will never be made good.