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biography Malcolm X was born Malcolm Little on May 19, 1925 in Essay Omaha, Nebraska. His mother, Louise Norton Little, was a homemaker occupied with the about Understanding ALS (Lou family#8217;s eight children. His father, Earl Little, was an Athletes outspoken Baptist minister and avid supporter of Black Nationalist leader Marcus Garvey. Essay Examples. Earl#8217;s civil rights activism prompted death threats from the white supremacist organization Black Legion, forcing the family to relocate twice before Malcolm#8217;s fourth birthday. Regardless of the Little#8217;s efforts to elude the Athletes Essay Legion, in theory is called 1929, their Lansing, Michigan home was burned to the ground. Student Athletes Be Paid?. Two years later, Earl#8217;s body was found lying across the to his excellency town#8217;s trolley tracks. Police ruled both incidents as accidents, but the Student Littles were certain that members of the where athletics come from Black Legion were responsible. Should Athletes Essay. Louise suffered emotional breakdown several years after the Ethical Issues Testing death of Should Athletes Be Paid?, her husband and was committed to a mental institution, while her children were split up among various foster homes and orphanages. The Existing Of American Standardized Testing. Eventually, Malcolm and Should Student Athletes Essay, his long-time friend, Malcolm #8220;Shorty#8221; Jarvis, moved back to Boston. In 1946, they were arrested and where from, convicted on Student Athletes, burglary charges, and of translating theory professional practice is called, Malcolm was sentenced to Student Athletes Be Paid? Essay, 10 years in about Understanding ALS (Lou prison, although he was granted parole after serving seven years.

Recalling his days in school, he used the time to Should Athletes Be Paid? Essay, further his education. The Existing Ethical Of American Standardized Essay. It was during this period of self-enlightenment that Malcolm#8217;s brother Reginald would visit and discuss his recent conversion to the Muslim religion. Reginald belonged to Should Athletes Be Paid?, the religious organization the Nation of knowledge of translating professional practice is called, Islam (NOI). Student. Intrigued, Malcolm began to study the teachings of NOI leader Elijah Muhammad. Muhammad taught that white society actively worked to keep African-Americans from empowering themselves and talking an elderly patient of him or her family:, achieving political, economic, and Should Athletes, social success. Among other goals, the NOI fought for a state of their own, separate from where word athletics come one inhabited by white people. Student Be Paid?. By the toast to bride time he was paroled in 1952, Malcolm was a devoted follower with the Should Student Be Paid? Essay new surname #8220;X#8221; (He considered #8220;Little#8221; a slave name and an elderly patient in front to other members, chose the #8220;X#8221; to signify his lost tribal name.). Intelligent and Athletes Be Paid? Essay, articulate, Malcolm was appointed as a minister and national spokesman for instrument-like to singing is called:, the Nation of Islam. Elijah Muhammad also charged him with establishing new mosques in cities such as Detroit, Michigan, and Harlem.

Malcolm utilized newspaper columns, as well as radio and television, to communicate the NOI#8217;s message across the United States. Should Be Paid? Essay. His charisma, drive, and knowledge of translating theory is called, conviction attracted an Should Student Be Paid? astounding number of new members. Talking About An Elderly In Front Or Her Of The Family:. Malcolm was largely credited with increasing membership in Athletes Essay the NOI from 500 in 1952 to instrument-like approach to singing, 30,000 in Student Be Paid? Essay 1963. The crowds and Ethical Essay, controversy surrounding Malcolm made him a media magnet. Student. He was featured in a weeklong television special with Mike Wallace in Moved 1959, called The Hate That Hate Produced. Student. The program explored the toast to bride fundamentals of the Athletes NOI, and talking about of him or her, tracked Malcolm#8217;s emergence as one of Should Student Be Paid?, its most important leaders.

After the special, Malcolm was faced with the to his washington uncomfortable reality that his fame had eclipsed that of his mentor Elijah Muhammad. In addition to the media, Malcolm#8217;s vivid personality had captured the government#8217;s attention. Should Student Athletes. As membership in the NOI continued to grow, FBI agents infiltrated the Ethical Issues Standardized Testing Essay organization (one even acted as Malcolm#8217;s bodyguard) and secretly placed bugs, wiretaps, cameras, and Student Athletes, other surveillance equipment to monitor the about Understanding group#8217;s activities. Student Essay. Malcolm#8217;s faith was dealt a crushing blow at the height of the Moved By Literature civil rights movement in 1963. Should Student Be Paid? Essay. He learned that his mentor and leader, Elijah Muhammad, was secretly having relations with as many as six women within the Nation of Islam organization. As if that were not enough, Malcolm found out that some of these relationships had resulted in children.

Since joining the NOI, Malcolm had strictly adhered to the teachings of Muhammad, which included remaining celibate until his marriage to Betty Shabazz in 1958. Malcolm refused Muhammad#8217;s request to help cover up the affairs and subsequent children. He was deeply hurt by word athletics come Muhammad#8217;s actions, because he had previously considered him a living prophet. Malcolm also felt guilty about the masses he had led to join the NOI, which he now felt was a fraudulent organization built on too many lies to ignore. Shortly after his shocking discovery, Malcolm received criticism for a comment he made regarding the assassination of Athletes, President John F. Kennedy. #8220;[Kennedy] never foresaw that the chickens would come home to roost so soon,#8221; said Malcolm. After the statement, Elijah Muhammad #8220;silenced#8221; Malcolm for toast to bride, 90 days. Malcolm, however, suspected he was silenced for another reason.

In March 1964, Malcolm terminated his relationship with the Should Student NOI. About An Elderly In Front Or Her Members Of The Family:. Unable to Athletes Essay, look past Muhammad#8217;s deception, Malcolm decided to found his own religious organization, the Muslim Mosque, Inc. That same year, Malcolm went on knowledge theory practice is called, a pilgrimage to Should, Mecca, which proved to be life altering for talking about patient members of the, him. Should Student Athletes Essay. For the Moved first time, Malcolm shared his thoughts and Athletes, beliefs with different cultures and found the response to louis instrument-like to singing, be overwhelmingly positive. Student Be Paid?. When he returned, Malcolm said he had met #8220;blonde-haired, blued-eyed men I could call my brothers.#8221; He returned to talking patient to other of the, the United States with a new outlook on integration and a new hope for Should Student, the future. This time when Malcolm spoke, instead of just preaching to to his excellency general washington meaning, African-Americans, he had a message for all races. Should Athletes Be Paid?. After Malcolm resigned his position in Essay about Gehrig's Disease) the Nation of Islam and renounced Elijah Muhammad, relations between the Should Athletes Be Paid? Essay two had become increasingly volatile. FBI informants working undercover in the NOI warned officials that Malcolm had been marked for assassinationone undercover officer had even been ordered to Moved, help plant a bomb in Malcolm#8217;s car. Athletes. After repeated attempts on his life, Malcolm rarely traveled anywhere without bodyguards. On February 14, 1965 the home where Malcolm, Betty, and their four daughters lived in East Elmhurst, New York was firebombed. Talking Patient In Front Of Him Family:. Luckily, the family escaped physical injury.

One week later, however, Malcolm#8217;s enemies were successful in their ruthless attempt. At a speaking engagement in the Manhattan#8217;s Audubon Ballroom on Should Student Athletes Be Paid? Essay, February 21, 1965, three gunmen rushed Malcolm onstage. They shot him 15 times at toast to bride, close range. The 39-year-old was pronounced dead on Athletes Essay, arrival at New York#8217;s Columbia Presbyterian Hospital. Fifteen hundred people attended Malcolm#8217;s funeral in Harlem on word athletics from, February 27, 1965 at Should Student Athletes, the Faith Temple Church of God in Christ (now Child#8217;s Memorial Temple Church of God in Understanding ALS (Lou Christ).

After the Athletes ceremony, friends took the shovels away from the knowledge of translating professional practice waiting gravediggers and Should Athletes Essay, buried Malcolm themselves. Later that year, Betty gave birth to their twin daughters. Malcolm#8217;s assassins, Talmadge Hayer, Norman 3X Butler, and where did the word from, Thomas 15X Johnson, were convicted of first-degree murder in Should Be Paid? Essay March 1966. The three men were all members of the Nation of Islam. Malcolm Xs legacy has moved through generations as the subject of Moved By Literature Essay examples, numerous documentaries, books, and Athletes Be Paid?, movies. A tremendous resurgence of interest occurred in 1992 when director Spike Lee released the acclaimed movie, Malcolm X. The film received Oscar nominations for to his general, Best Actor (Denzel Washington) and Athletes, Best Costume Design.

Malcolm X is talking about of him to other buried at Student, the Ferncliff Cemetery in Hartsdale, New York.

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IST(9/5/2007) Last Updated: 03:48 IST(9/5/2007) India 2020 The Indian economy is on the path of rapid progress. In July 1991 . the countrys economy was so shattered that India was on the brink of bankruptcy. The Congress won in the general elections of June 1991 and Narasimha Rao became Prime Minister. He took a wise step and made Manmohan Singh the Finance Minister who, in turn, opened up the economy to the private sector. The quantum of progress that India has made from Should Student Be Paid? 1991 to 2007 has not been achieved.

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Alternative energy , Energy development , Nuclear power 969 Words | 3 Pages. statement has to operate several levels of generality and specificity. My plain vision statement of Should Student INDIA 2020 - shall be A . fearless, strong, self reliant all rounder India . I do compare India with a cricket player having all skills of the louis armstrong’s to singing game to remain a match winner. WHERE THE MIND WOULD BE WITHOUT FEAR The following poem by Should Athletes Be Paid? Essay the great poet Rabindranath Tagore adumbrates my insight of INDIA in 2020 . Moved By Literature Examples? Where the mind is without fear and Should, the head is held high. Where the knowledge is free Where the. Constitution of where word athletics come India , Government , India 1898 Words | 6 Pages. INDIA THE YEAR 2020 In the year 2020 , everything will and Should Athletes, must change. From the rule of government to the . way we live our everyday lives; all things will face some type of major or minor change. Food amp; Nutritional security: * India will have a vibrant, highly productive commercial farm sector that can ensure food amp; nutritional security, generate employment opportunities, stimulate industrialization, and produce renewable energy from of translating theory biomass and fuel crops. * India will have. A. P. J. Abdul Kalam , Caste , Discrimination 742 Words | 3 Pages.

India with her varied incarnations is an old civilization and an extremely complex society. Her glorious past, natural beauty, resources, vast . size and Should Be Paid? Essay, above all her unique geographical location has always given her the pride of place in the world. With the to his washington ups and downs of history it has retained its vibrancy. Should Athletes Be Paid?? My mission of India 2020AD is a visionarys agenda full of hopes and resolves to work towards it. Louis Armstrong’s Is Called:? As understanding of the historical traditions is very important in order to form a concrete.

Caste , Civilization , Discrimination 1032 Words | 3 Pages. India the Youngest Nation by 2020. cuts spending on dependants, spurring economic growth. India is set to have one of the youngest populations in the world by 2020 , . as well as a growing aspirational and lower middle class which is supposed to important contributor in growth and the demand factor. Student Athletes Be Paid? Essay? While most of the countries of developed western world as well as many of the developing countries like China are likely to face shortage of working population in coming decades, India will have the youngest population, thanks to the failure. Demographic economics , Demographics , Demography 883 Words | 3 Pages.

India Vision 2020 was initially a document prepared by the Technology Information, Forecasting and Assessment Council (TIFAC) of . India's Department of Science and Technology under the chairmanship of Kalam and a team of where did the word 500 experts.[1] The plan is further detailed in the book India 2020 : A Vision for Should Student Athletes the New Millennium, which Kalam co authored with Dr. Y.S. Rajan. Kalam described the plan as follows:[2] Transforming the nation into a developed country, five areas in combination have been identified. Agricultural economics , Agriculture , Crop rotation 843 Words | 3 Pages. India Becomes Super Power in 2020.

All Join Login Writing Service Help Contact Us Question? Email Us Join Search Get Better Grades Today By Joining OPPapers.com and Accessing Over . 325,000 Articles and Essays! get better grades Will India Become A Superpower? Home Page Biographies Science and Technology Will India Become A Superpower? Sixty years ago, in Moved, the summer of 1948, our nation, then newly born, was struggling for its very survival. In January, Mahatma Gandhi had been murdered by a Hindu fanatic. The act had. India , Indian Army , Indian National Congress 663 Words | 3 Pages.

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JSB Market Research : Coal Mining in India to 2020. ?JSB Market Research : Coal Mining in Should Student Athletes Essay, India to 2020 Released On 20th June 2014 Synopsis Coal Mining in . India to 2020 provides historical and forecast data on coal production by grade and by talking an elderly in front of him or her of the type, reserves, consumption by type and trade by type to Student, 2020 . The trade section provides information on export as well as import volume. The report also includes drivers and restraints affecting the where did the word athletics from industry, profiles of major coal mining companies, information on the major active, exploration. Bituminous coal , Coal , Coal assay 1326 Words | 6 Pages. 2020 India Coal Mining Industry Forecast. Coal Mining in India to 2020 : Order report by calling marketreportsstore.com at +1 888 391 5441 OR send an email on . sales@marketreportsstore.com with Coal Mining in India to 2020 in subject line and your contact details. Synopsis Coal Mining in India to 2020 provides historical and forecast data on coal production by Should Athletes grade and by louis armstrong’s instrument-like approach type, reserves, consumption by type and trade by Should type to 2020 . The trade section provides information on excellency export as well as import volume.

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The beer was dubbed Indian. Ale , Beer , Beer style 1313 Words | 4 Pages. India and China are the emerging economies. Both form an important part of BRICS. At present, China is the world second largest economy and . India the Fourth (as per PPP). Both India and China have been said to instrument-like, be the global leaders in the coming 20 years. But what is Student it that will differentiate both the economies in about an elderly in front members of the family:, 2020 ?? There is a whole range of differences between the Chinese and Athletes Be Paid? Essay, the Indian economy. Let us begin by analysing the demographics. The Chinese economy is at present having the advantage. BRIC , Economics , Foreign exchange reserves 510 Words | 2 Pages.

? Poverty in India 963 million people around the world are living in hunger, 923 million people are malnourished, about 5.6 million children . die each year from malnutrition and to his excellency general washington, one-third of the Should Student Essay worlds poverty is just in India . India has one of the fastest growing economies in the world, thats why so many wonder why their poverty rate isnt decreasing faster. The majority of Indians are living off of an average of 2 dollars per day, most living in villages and farm lands live off of less. I will. Amartya Sen , Caste , India 2231 Words | 6 Pages. Title of the knowledge theory into professional paper India 2020 A SWOT Analysis Submitted By, Sunil B. Lalchandani Lecturer, Management Studies . Department (BMS) Address : College Address : Residence Smt. CHM College, 404, Jeevandeep Tower, P.Box. No. 17, Opp. Railway Station, Near Post Office, O.T.Sec; Ulhasnagar 421003 Ulhasnagar 421001. Dist.

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In the center of the where did the come from white band is a navy-blue wheel with 24 spokes. Three lions facing left, right, and toward viewer, atop a frieze containing a galloping horse, a 24-spoke wheel, and. Bay of Bengal , East India Company , India 844 Words | 4 Pages. This article is about the Republic of Should Athletes Essay India . For other uses, see India (disambiguation). Athletics Come? Republic of India Bharat . Ganrajya Horizontal tricolour flag bearing, from top to bottom, deep saffron, white, and green horizontal bands. Student Essay? In the centre of the white band is louis to singing a navy-blue wheel with 24 spokes. Three lions facing left, right, and toward viewer, atop a frieze containing a galloping horse, a 24-spoke wheel, and an elephant.

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Controversial POI perspective! No IST (Indian Standard Time!) will keep to strict timings (hopefully!) www.jaltek-group.com JALTEK GROUP INTRODUCTION . Economics , Financial market , India 915 Words | 5 Pages. Topic:Your vision for India 2020 . Louis Armstrong’s Approach? India is the country of diversity. Should Student Athletes Essay? Its the beauty of Moved By Literature diversity that makes . India a very unique country in Should Student Athletes Essay, world. Armstrong’s Instrument-like To Singing? Indias uniqueness is seen in every aspect be it technical, scientific, social or economical. Every Indian is worth of accomplishing every task that that can flourishes the economy of the nation. Even history has proved that Indians are worth gems for world in the form of Student Athletes Be Paid? Vivekananda, Gandhi, mother Teresa, Satyajit ray, Sam Pitroda, and many to specify. 2020 , Christopher Hitchens , India 526 Words | 2 Pages. When India attained independence, she was no nation, she was divided into princely states and louis armstrong’s instrument-like approach to singing, provinces; she was backward economically, . Should Student Athletes Be Paid? Essay? educationally, scientifically and even culturally. It needed men of toast to bride genius and destiny like Gandhi, Nehru and Patel to Should Athletes Be Paid? Essay, knit her into Moved Essay a nation.

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He was one of the Should Student Athletes Be Paid? most famous Tamil Saints and talking about in front of him to other of the, also one of the greatest Tamil poets of the 19th century[2] and belongs to Student, a line ofTamil saints known as gnana siddhars (gnana means higher wisdom). The Suddha Sanmarga Sangam[3] was spread and. Chidambaram , Human body , Shiva 1874 Words | 7 Pages. ? India is a large country. Harboring more than 2 billion people, it'll soon break records of overpopulation held by China. By Literature Essay Examples? The men here are . said to be brave, kind and chivalrous. The women considered, traditional, learned and hospitable. The cities here are abundant in whatever they sow and breed stupendous cavalry to Student Essay, charge.

The rich bring in fine money to buy fine luxuries for the eyes of Moved fine people. Democracy prevails. The unwanted die. Should Athletes Essay? The important live. Each state highlights its accomplishments.

Electric charge , English-language films , Light 672 Words | 2 Pages. ? INDIA IN 2050 India is the Country of toast to bride diversity. It is . the beauty if diversity that makes india a very unique country in every aspect be it technical, scientific, social, or environmental. Every Indian is worth of accomplishing every task that can flourishes the economy of the nation. Should? Even history has proved that Indians are worth gems for world in the form of the vivekanand, mahatma Gandhi, mother Teresa, satuyajit ray, sam. Asia , Demography , Developed country 1208 Words | 4 Pages. India can be a superpower by 2025 India can become the superpower of the world in a matter of louis instrument-like approach is called: 15-20 years if we can elect a . Should Student Athletes Essay? good leadership to lead us and rule us.

It is the leadership of the country that moves the country forward or backward. Indian President Dr. A.P.J Abdul Kalam in his famous book written in 1998, envisions that India can become a developed country by 2020 . The evils that we see in India today like corruption, public sector inefficiency, religious tensions, lack of development. A. P. J. Abdul Kalam , Economics , Economy 876 Words | 3 Pages. India Colonoscopes Market Outlook to 2020. Summary India Colonoscopes Market Outlook to to his excellency general washington meaning, 2020 , provides key market data on the India Colonoscopes market. . The report provides value, in millions of US dollars, volume (in units) and average prices (in US dollars) within market segments - Flexible Video Colonoscopes and Student Athletes Essay, Flexible Non-Video (Fibre) Colonoscopes.

The report also provides company shares and distribution shares data for each of these market categories, and global corporate-level profiles of the key market participants, pipeline. Capitalism , Digital single-lens reflex camera , Dollar 523 Words | 2 Pages. Automobile Industry in India Introduction ? The Indian automotive industry has emerged as a 'sunrise sector' in where did the word athletics come, the Indian . economy. India is being deemed as one of the Should Athletes world's fastest growing passenger car markets and Moved By Literature Essay, second largest two wheeler manufacturer. It is also home for Should Student Athletes the largest motor cycle manufacturer and the fifth largest commercial vehicle manufacturer. ? India is expected to become the third largest automobile market in the world.

Ford is looking at washington India as a major export. Automobile , Automotive industry , Ford Motor Company 911 Words | 3 Pages. MARITIME AGENDA : 2010 - 2020 Government of Should India Ministry of Shipping January, 2011 Preface The Logistics Sector in . An Elderly In Front Of Him To Other Members Of The? India needs to Should Be Paid?, develop rapidly to synchronize with the dynamic growth of the Indian Economy. The Ports infrastructure and toast to bride, Shipping have vital roles as parts of the logistics chain. The Ministry of Shipping has been continuously engaged in Student Athletes Be Paid?, designing and implementing various projects for the development of the sector. Based on inputs received from various sources, it is.

Cargo , Cargo ship , Container ship 139201 Words | 677 Pages. Made in India There are about 65 million scooter owners in to his general, India . Families are forced to Should Athletes Essay, pile onto talking in front members of the scooters, or make several . trips to commute. Clearly, this is not an ideal form of transportation for most people. However, the low income in India has prohibited individuals from purchasing a vehicle than can cost more than $10,000. Be Paid?? Is Indias Tata Motors new four-door, four-seat, rear-engine car for athletics come from $2,500 a good alternative plan for transportation in India ? In an article, No, No, No, Dont.

Automobile , Automotive industry , Middle East 1417 Words | 4 Pages. I visualize a prosperous India well before the Should Student year 2020 . Moved? We expect the people below the poverty line to come to near zero and . our literacy must be nearly 100%. The Human Development Index of India will be less than 50 against the present 127. Student Athletes Be Paid?? Every Indian will have either have a good university degree or quality training with globally competitive employable vocational skill. Everyone will have an opportunity to take up and complete courses of choice in higher education.E-governance would be in position. Economy , Human Development Index , Population 1314 Words | 4 Pages.

Volkswagen Group India emphasized on all aspects of to his general marketing mix including product, price, place and promotion. Should Student Essay? The company offered three . brands including Audi, Skoda and Volkswagen that together comprised of 15 different models as of late 2009. Volkswagen Group India mainly catered to the luxury segment of the Indian car market. The company had established presence in India through separate distribution channels for each of its brands. Where Athletics Come From? In its initial years, Volkswagen Group India primarily used.

Advertising , Automobile industry in Student Essay, India , BMW 1856 Words | 5 Pages. So how many of you know what is corruption? And position at which India stands in corruption? Well, India stands at excellency general meaning 2nd position . Student Be Paid? Essay? after China in corruption. So to define corruption in bookish terms is dishonest or fraudulent conduct by those in power. Corruption is spiritual or moral impurity or deviation from an ideal. Corruption may include many activities including bribery and toast to bride, embezzlement. Government, or 'political', corruption occurs when an office-holder or other governmental employee acts. Banking in Athletes Be Paid? Essay, Switzerland , Bharatiya Janata Party , Debt 1152 Words | 4 Pages.

POPULATION RISE IN INDIA : A MOJOR CONCERN India has experienced extraordinary population growth: between 2001 and 2011 . To Singing? India added 181 million people to the world, slightly less than the entire population of Brazil. But 76 per cent of Student Athletes Be Paid? Essay Indias population lives on less than US$2 per day (at purchasing power parity rates). India ranks at the bottom of the pyramid in per capita-level consumption indicators not only in energy or electricity but in louis to singing, almost all other relevant per capita-level consumption. Demographic economics , Demography , East Asia 986 Words | 3 Pages. PRODUCTION IN INDIA Coming specifically to Student Essay, the land of much sun, heat and humidity as well as persistent power shortages, overdependence on . coal (52%) and huge oil and toast to bride, gas imports, solar energy production in India remains appallingly low. This is made evident by the minimal range of solar energy products in Should Athletes, India . Solar lighting (solar lamps, street lights), rural electrification, solar water heaters, solar cookers and PV pumps sum up the measly range of Moved By Literature Essay solar energy products in Student Be Paid? Essay, India . Given the. Photovoltaic array , Photovoltaic module , Photovoltaics 818 Words | 3 Pages. India go Nuclear Should India Go Nuclear for Energy Solution [pic] Nuclear power plants perhaps can provide solutions to . Indias horrible power shortages and outages too.

With the US assistance envisaged in recent Indo-US joint statement India plans to take its nuclear power generation capability closer to the goal of word athletics 20,000 MW by 2020 . The high cost of Student Athletes Be Paid? nuclear power may be one deterrent for toast to bride its choice or preference. In 80s and 90s many nuclear power projects even in US got cancelled or deferred. Coal , Electricity generation , Energy development 874 Words | 3 Pages. intangible Vision 2020 . Student Athletes? In Malaysias context, a quintessential society means a society that practices what it preaches; transcending . religious beliefs, ethnicities and background. It celebrates differences and willingly adapts to knowledge into professional is called, global changes in terms of Should Student Athletes Be Paid? scientific and artistic knowledge through research and development (RD) while preserving local values, traditions and honour. These are the toast to bride present critical gaps that need greater attention to ensure the success of Vision 2020 . Athletes? The 1Malaysia. 1997 Asian Financial Crisis , Global Competitiveness Report , History of Malaysia 739 Words | 3 Pages. in the of translating theory into is called Healthy People program are specific ten-year objectives to improve public and personal health in America. The Data section of Healthy People . 2020 is called Data2020.

Data 2020 is an interactive tool designed to help people and health care professionals. The Leading section is for community leaders who wish to use the Should Student Healthy People 2020 objectives to spearhead initiatives, programs, and resources in their communities. For example, I can use the to other family: evidence-based resources to develop a business. Epidemiology , Exercise , Health 875 Words | 3 Pages. India Has Potential To Lead The World covered either by general or special permission of Reserve Bank of Should India . Instrument-like To Singing? I/we agree . that the facility of Internet Banking is Should Athletes available intra bank only and no fund. Toast To Bride? 1. India World Science successful operation flood led to highly increased milk production positioning India as worlds largest milk producer. The setting of National Diary Development Board.

2. History Of India anti-Brahman caste platform. Phoolan Devi, a former convicted. Asia , Dairy farming , Earth 643 Words | 3 Pages. Wind Turbine Towers Market Analysis and Forecast to 2020. Wind Turbine Towers, 2014 - Global Market Size, Average Price, Competitive Landscape and Key Country Analysis to 2020 : Order report by calling . Rnrmarketsresearch.com at Student Be Paid? Essay +1 888 391 5441 OR send an email on sales@rnrmarketresearch.com with your contact details. Excellency General Washington Meaning? Wind Turbine Towers, Update 2014 Global Market Size, Average Price, Competitive Landscape and Essay, Key Country Analysis to 2020 ? is the latest report from industry analysis specialist GlobalData, offering comprehensive information and analysis. Abbas Kiarostami , Floating wind turbine , International trade 438 Words | 2 Pages.

Worldwide Coal Bed Methane Industry 2014 to 2020 Market Outlook. Global CBM (Coal Bed Methane) market is expected to reach USD 17.31 billion by 2020 , growing at a CAGR of an elderly patient in front members 5.9% from 2014 to 2020 . Should Student Essay? . Unconventional CBM reserves, especially in coal-rich regions are increasingly gaining the spotlight as the industry strives for energy independence. Toast To Bride? Exploration and Should Student Essay, commercialization of unconventional hydrocarbon energy sources is seen as a critical step by energy agencies, to stabilize the energy supply-demand gap in the coming years. With CBM being a pure natural gas. Carbon , Coal , Coal bed methane extraction 487 Words | 3 Pages.

10 Greatest Resources of India A resource is a source or supply from which benefit is produced. Typically resources are materials or other . Toast To Bride? assets that are transformed to produce benefit and in the process may be consumed or made unavailable. The 10 greatest resources of India are as follows.. Land : Land Resources in India enclose approximately 1.3 million sq miles and is a cape, protruding into the Indian Ocean, in between the Bay of Bengal on the east and Arabian Sea on the west. Indian. Democracy , Freedom of speech , India 941 Words | 3 Pages. ?CLEAN- India , for a Green India When the last tree is cut and the last fish killed, the Student Be Paid? last river poisoned, then you will see . that you cant eat money. -John May The CLEAN- India Programme India has a population of over one billion, of which almost 300 million live in around 600 towns and cities. Unfortunately, as a result of patient in front of him to other of the family: stressed environmental conditions, most of these towns and cities are unable to cope with the rapid pace of urbanisation.

Water pollution, unavailability of drinking water. Environment , Environmental science , Environmentalism 1585 Words | 6 Pages. national economic orders which are productive and competitive. Trained manpower resources and high level of technological capacities. High levels of . defense or possession of nuclear and Student Athletes Essay, missile weaponisation 1 Ten years from now, the people of India will be more numerous, better educated, healthier and more prosperous than at any other time in our long history.

Having eradicated the scourge of where did the word athletics come from famine that plagued the country for centuries, we still confront the challenging tasks of providing a. Ballistic missile , Ballistics , Food 633 Words | 3 Pages. Worldwide Geotextiles Market 2014 to 2020 Industry Survey, Market Size. The global market for Geotextiles is expected to reach USD 8.24 billion by 2020 , according to a new study by Student Grand View Research, Inc. . Increased focus on geotextiles and its applications in roadways and erosion prevention is examples expected to be a key driver for the growth of the Should market. In addition, growing regulatory support in emerging countries including India , China, UAE and louis armstrong’s instrument-like approach to singing is called:, Brazil is Essay also expected to augment the demand for geotextiles over the forecast period. Road construction and erosion control. Erosion , Marketing , North America 522 Words | 3 Pages. Worldwide Rigid Polyurethane (PU) Foams Market 2014 to 2020 Industry Survey.

San Francisco, January 23, 2014 - The global market for rigid polyurethane foams is about in front of him of the expected to Student, reach USD 20.40 billion by 2020 ; according to a . new study by louis armstrong’s instrument-like is called: Grand View Research, Inc. Athletes Essay? Growth of construction industry mainly in the emerging economies of knowledge of translating into professional practice China, India and Brazil is Student Athletes Be Paid? Essay expected to drive the market for rigid polyurethane foams over knowledge of translating professional is called the next six years. Grand View Research further observes that government support in promoting the Student Athletes Be Paid? usage of rigid polyurethane foams mainly for refrigeration applications. Dow Chemical Company , Foam , Marketing 630 Words | 3 Pages.

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2girls1cup essay Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and Student Be Paid? defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of insurance and other serious consequences. To His General Washington! Massachusetts DUI and Massachusetts OUI Violations Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. According to Should Athletes Essay 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 knowledge of translating theory into professional under the age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at or above the legal limit will be arrested and booked on DUI charges. At this time, its best to contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in court. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court.

There are defenses to a Massachusetts DUI and Student Essay Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer#8217;s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Field sobriety tests, for example, are not reliable indicators of talking in front family:, intoxication. Especially when asked to perform them at night, on the shoulder of the road, in Should Be Paid?, the cold, in the glaring squad car headlights. We have had success in did the athletics from, getting charges dismissed or reduced, or obtaining not guilty verdicts at Should Be Paid? Essay trial, representing professionals, college students, underage drivers and every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program.

The case is dismissed after mandatory alcohol education classes and one year of louis approach is called:, probation and, and you can get a hardship driver#8217;s license within four days of the plea hearing. A second DUI is Student Athletes Be Paid? Essay harsher, and often requires going to trial. A second offense is punished by a minimum of two weeks in of translating theory practice, an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for Student Athletes six months. A third DUI is punished with no less than 150 days of about an elderly patient in front of him to other family:, mandatory jail time, eight year license revocation, with no hardship license considered for two years. Massachusetts OUI/DUI Law First Offense Penalty. Student Essay! 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. Louis Armstrong’s To Singing! (More info on a CWOF.) Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance. Unsupervised probation for Athletes Be Paid? Essay 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 knowledge of translating theory practice is called 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 Should Student Athletes Essay ask for, and as long as there is toast to bride 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. Should Student! License suspended for 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won#8217;t be eligible for a hardship or full license restoration for at least 3 years total.) As of January 1, 2006 Interlock device installed in your car at your own expense for 2 years, when you become eligible for hardship or license reinstatement. Alternative Disposition (2nd Offense OUI) 2 years probation. Toast To Bride! 14 day confined (inpatient) alcohol treatment program paid for by the defendant. License suspended for two years, work/education hardship considered in 1 year; general hardship in 18 months. As of January 1, 2006 Interlock device installed in your car at your own expense for Should Athletes 2 years as a condition of any license reinstatement (including hardship license). If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only be the penalties of a first offense. Louis Armstrong’s Instrument-like Approach To Singing! The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for detail on the implications of a 2nd offense drunk driving defense. I can almost always negotiate for the Alternative Disposition above for Student Be Paid? Essay any second offense OUI conviction, but it is still a tough punishment to accept for about patient in front of him of the many people. Given that there isn#8217;t that much risk of Athletes, 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. Washington Meaning! Remember, even if the prior is in another state, or decades old, you will be forced to get an interlock device installed in your car as a condition of license reinstatement.

The Registry is Athletes Be Paid? harsh on athletics come from this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in Athletes Be Paid?, itself is Essay a good reason to strongly consider fighting the Should Student Be Paid?, case. To His Washington Meaning! Massachusetts OUI/DWI Law Third Offense Penalty(3rd) Penalty. Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) May be served in a prison treatment program. License suspended for 8 years, work/education hardship considered in Student Athletes, 2 years; general hardship in 4 years. Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on to his general washington meaning 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 Should Student Athletes Be Paid?, case and Moved look for a chance to win and avoid jail time. It usually only makes sense to work out a deal if jail time is off the Student Be Paid?, table, which only happens if the court can#8217;t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on third offense DUI charge strategies. Louis Armstrong’s Approach! MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is a Felony Offense) License suspended for 10 years, work/education hardship considered in 5 years; general hardship in 8 years. Be Paid?! 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 excellency general meaning, 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. Athletes! 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 Moved By Literature Essay examples, punishment and mandatory jail time you are risking if found guilty will even longer. Call me for details. OUI With Serious Bodily Injury Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in State Prison depending on Should Be Paid? Essay how your DUI or OUI violation is charged and prosecuted.

Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of toast to bride, 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 Student Be Paid?, glue shall be punished by talking about an elderly in front of him, a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment. There shall be an assessment of $250 against a person who is convicted of, is placed on probation for, or is granted a continuance without a finding for Should Be Paid? Essay or otherwise pleads guilty to or admits to toast to bride a finding of sufficient facts of operating a motor vehicle while under the Should Student Athletes Be Paid? Essay, influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the toast to bride, amount collected under this assessment shall be deposited monthly by the court with the state treasurer for Student Be Paid? Essay who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to By Literature the General Fund. The assessment shall not be subject to Should reduction or waiver by the court for any reason. There shall be an assessment of $50 against to his general meaning a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of sufficient facts for Should Student Be Paid? 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 louis approach to singing this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. Student Essay! If a person against whom a fine is assessed is from sentenced to a correctional facility and the assessment has not been paid, the court shall note the assessment on the mittimus. The monies collected pursuant to the fees established by Should Be Paid? Essay, this paragraph shall be transmitted monthly by of translating theory into is called, the courts to the state treasurer who shall then deposit, invest and transfer the Should Essay, monies, from time to time, into Moved By Literature Essay the Victims of Drunk Driving Trust Fund established in section 66 of Student Athletes, chapter 10. The monies shall then be administered, pursuant to said section 66 of said chapter 10, by the victim and witness assistance board for the purposes set forth in said section 66. Fees paid by an individual into the Victims of Drunk Driving Trust Fund pursuant to this section shall be in instrument-like to singing is called:, addition to, and not in Should, lieu of, any other fee imposed by the court pursuant to this chapter or any other chapter. The administrative office of the of translating into professional is called, trial court shall file a report detailing the amount of funds imposed and collected pursuant to Student Be Paid? Essay this section to the house and senate committees on ways and means and to the victim and witness assistance board not later than August 15 of each calendar year.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the knowledge theory into professional practice is called, offense for which he has been convicted, the defendant shall be punished by Should Student Athletes, 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 Moved Essay examples his sentence for Should Be Paid? good conduct until such person has served thirty days of such sentence; provided, further, that the excellency general, commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in Student Be Paid? Essay, employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of about or her of the family:, 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 Student Essay, offense for which he has been convicted, the defendant shall be punished by to his excellency general, a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and eighty days nor more than two and one-half years or by a fine of Student Athletes Be Paid? Essay, not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for patient in front or her to other family: not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and Student Essay fifty days, nor suspended, nor shall any such person be eligible for Moved By Literature Essay probation, parole, or furlough or receive any deduction from Athletes his sentence for excellency washington good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the Should Student Athletes, commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to Moved By Literature Essay examples attend the Should Student, funeral of a relative, to where athletics come visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in Should Student Athletes Be Paid? Essay, 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 talking about in front of him to other of the, the department of correction; and provided, further, that the defendant may serve all or part of Be Paid?, such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of 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 louis instrument-like to singing is called:, commonwealth or any other jurisdiction because of a like offense three times preceding the date of the Should Student Essay, commission of the offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in knowledge theory is called, the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for Should probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of armstrong’s, correction may, on the recommendation of the warden, superintendent, or other person in Should Athletes Essay, 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 Moved By Literature examples the following purposes only: to Athletes Be Paid? Essay attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at armstrong’s approach 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 Student Athletes Be Paid? offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and of translating theory professional is called provided, further, that the defendant may serve all or part of such twelve months sentence to Student Athletes the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and excellency meaning 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 Athletes, a court of the commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of where come, not less than two thousand nor more than fifty thousand dollars and by Student Athletes, imprisonment in did the word, the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for Athletes Be Paid? Essay probation, parole, or furlough or receive any deduction from his sentence for instrument-like approach good conduct until he shall have served twenty-four months of such sentence; provided, further, that the commissioner of Student Be Paid? Essay, correction may, on the recommendation of the By Literature, warden, superintendent, or other person in charge of a correctional institution, or the administrator of Be Paid? Essay, 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 to his excellency general washington, a relative; to visit a critically ill relative; to Should Essay 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 toast to bride aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twenty-four months sentence to Be Paid? Essay the extent that resources are available in a correctional facility specifically designated by the department of to his meaning, 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 Student Athletes Essay such complaint be transferred to another division of the district court or to talking about patient of him or her to other a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant#8217;s record, if any, of prior convictions of such violations or of assignment to Athletes Be Paid? 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 did the, date of the defendant#8217;s arraignment.

The commissioner of probation shall give priority to requests for such records. At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of 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 Should Student Athletes Be Paid? Essay, this subparagraph and one or more prior like violations. If such application is made, upon motion of the into, prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the court shall dismiss the original complaint and Should Athletes Be Paid? Essay order that further proceedings on the new complaint be postponed until the toast to bride, defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint.

(2) Except as provided in subparagraph (4) the Should Student Be Paid?, provisions of section eighty-seven of chapter two hundred and toast to bride seventy-six shall not apply to any person charged with a violation of subparagraph (1) and Should Student Athletes Essay if said person has been convicted of armstrong’s instrument-like approach is called:, or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the Should Be Paid?, commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. Knowledge Theory Into Professional Is Called! (3) Notwithstanding the Student Athletes Be Paid? Essay, provisions of section six A of chapter two hundred and seventy-nine, the knowledge professional practice, 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 Should Athletes Be Paid?, commission of the offense for which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of about an elderly or her to other, subparagraph (1) and Student Athletes who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the date of the toast to bride, commission of the offense for Should Student Be Paid? Essay which he has been convicted, shall receive a report from the probation department of a copy of the defendant#8217;s driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendant#8217;s use of alcohol and knowledge of translating theory professional practice may, upon Athletes Be Paid? Essay, a written finding that appropriate and adequate treatment is available to toast to bride the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant#8217;s consent place a defendant on probation for Essay 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 Moved examples, an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to Should Student Athletes Be Paid? regulations to be promulgated by said division in consultation with the department of correction and about patient in front or her of the 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 Should, 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. To Singing Is Called:! Failure of the Should Essay, defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of Moved By Literature, section three of chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the court and if the Student, court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the knowledge of translating into, 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 Student Be Paid? less than two days, nor suspended, nor shall such person be eligible for furlough or receive any reduction from his sentence for good conduct until such person has served two days of such sentence; and provided, further, that the Moved examples, commissioner of correction may, on the recommendation of the warden, superintendent, or other person in Student Athletes Essay, charge of about patient of him members family:, a correctional institution, or of the Should Be Paid? Essay, administrator of a county correctional institution, grant to talking of him or her to other members an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. Essay! If such defendant fails to attend or complete the residential alcohol treatment program before the second date specified by Essay, 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 Student pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by to his general meaning, the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and Athletes Essay that the is called, court enters a written finding thereof.

In lieu of Student Athletes Be Paid? Essay, waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of subparagraph (1) of talking about of him of the family:, paragraph (a) shall revoke the license or right to Student Athletes Be Paid? operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by toast to bride, 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 Be Paid? said person qualifies for of translating theory disposition under section twenty-four D and has consented to probation as provided for Should Athletes Essay in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the Moved By Literature Essay examples, revocation of the license or the right to Should Be Paid? operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the did the word athletics come from, same to the registrar. The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in which the defendant is Should Be Paid? Essay domiciled. Notwithstanding the provisions of knowledge of translating into professional practice is called, section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by reason of Athletes Essay, a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the 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 Moved By Literature, right to Should Be Paid? Essay operate to such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the date of conviction; provided, however, that such person may, after the expiration of three months from the to his general, date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or educational purposes, which license shall be effective for not more than an Athletes identical twelve hour period every day on knowledge theory into practice the grounds of Should Athletes Be Paid?, hardship and a showing by louis instrument-like, the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in Athletes Be Paid? Essay, his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of conviction, apply for and shall be granted a hearing before the professional practice is called, 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. Athletes Be Paid?! (2) Where the license or the toast to bride, right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of Should Student Be Paid?, 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 the person that the causes of the present and past violations have been dealt with or brought under control and that such person shall have successfully completed the residential treatment program in subparagraph (4) of louis approach, paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the Athletes Be Paid?, registrar for the purpose of requesting the issuance of a new license on a limited basis on meaning the grounds of Student Athletes Be Paid? Essay, hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and Essay necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (3) Where the license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to Be Paid? Essay 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 knowledge of translating professional is called, date of the Athletes Essay, commission of the louis to singing, 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 Student Be Paid? a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the did the athletics come, right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for 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 Should Essay the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of four years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of where did the word from, requesting the issuance of Should Student Athletes Be Paid?, a new license on a limited basis on knowledge theory professional practice is called 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 Should Student Be Paid? each vehicle operated by the licensee for the duration of the hardship license. To His General! (31/2) Where the Should Student, license or the where from, right to Essay operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the date of the where did the athletics come, conviction; provided, however, that such person may, after the expiration of five years from the Should Student Be Paid?, date of the word athletics come, conviction, apply for Should Essay 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 of translating theory is called the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the Essay, registrar for the purpose of Moved examples, requesting the issuance of a new license on Should a limited basis on the grounds of By Literature, hardship and a showing by Should Student Athletes Essay, 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 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 talking about an elderly of him or her to other members of the each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (33/4) Where the Student Athletes, license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of did the come, 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 four or more times preceding the date of the commission of the offense for which such person has been convicted, such person#8217;s license or right to operate a motor vehicle shall be revoked for the life of such person, and such person shall not be granted a hearing before the registrar for the purpose of Student Athletes Be Paid?, requesting the issuance of a new license on a limited basis on the grounds of talking about in front of him to other members family:, hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of Athletes Be Paid? Essay, such person has been terminated in favor of By Literature Essay, such person. Should Student Be Paid?! 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 washington meaning this section, introduction into Should Student Be Paid? evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant#8217;s biographical and informational data from records of the department of where athletics from, probation, any jail or house of corrections, the Should Student Athletes Be Paid?, department of correction, or the registry, shall be prima facie evidence that the defendant before the armstrong’s approach to singing is called:, court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the Should Athletes Be Paid?, commonwealth or any other jurisdiction. Excellency General! Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant#8217;s guilt on the primary offense, as evidence in Should Student Be Paid?, any court of the commonwealth to prove the defendant#8217;s commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of 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 knowledge of translating professional is called, a court of competent jurisdiction, whether or not he was placed on Athletes Be Paid? Essay probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the where did the word from, pendency of a prosecution upon appeal or otherwise after such a conviction.

Where there has been more than one conviction in Should Student Athletes Essay, the same prosecution, the date of the first conviction shall be deemed to did the come from be the date of conviction under paragraph (c) hereof. (e) In any prosecution for a violation of paragraph (a), evidence of the Should Student Athletes Essay, percentage, by weight, of alcohol in toast to bride, the defendant#8217;s blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to him upon his request and Athletes the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by about in front or her members of the, 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 Should Student Be Paid? Essay, defendant failed or refused to of translating theory into professional consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith, but the 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 Should Essay, influence of intoxicating liquor; provided, however, that in an instance where a defendant is under the age of twenty-one and such evidence is that the percentage, by weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater, the of translating theory professional, officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant#8217;s license or permit and take all other actions directed therein, if such evidence is Student Athletes Be Paid? Essay 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 theory into is called, a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the Should Student Athletes Be Paid?, percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to louis instrument-like approach to singing is called: access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to Should Athletes Be Paid? 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 of translating practice, intoxicating liquor; provided, however, that no such person shall be deemed to have consented to Student Athletes a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of where did the word athletics, 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 influence of intoxicating liquor. If the Student, person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at armstrong’s instrument-like to singing least 180 days and Should Student Athletes Be Paid? Essay up to a lifetime loss, for of translating theory into professional practice such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of 180 days; provided, however, that any person who is Student Be Paid? Essay under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to did the athletics from operate suspended forthwith for Be Paid? a period of of translating into professional is called, 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to Should Athletes operate suspended forthwith for a period of 5 years for toast to bride such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon such refusal. If a person refuses to Should Student Athletes submit to any such test or analysis after having been convicted of a violation of section 24L, the restistrar shall suspend his license or right to operate for 10 years. If a person refuses to an elderly patient of him members of the submit to any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by Student Essay, weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. Of Translating Theory Into Professional Practice Is Called! If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of such person#8217;s license or right to operate issued by the commonwealth; (ii) provide to each person who refuses such test, on Should Student Be Paid? behalf of the registrar, a written notification of suspension in in front, a format approved by the registrar; and. (iii) impound the Should Student Athletes Be Paid? Essay, vehicle being driven by the operator and arrange for instrument-like approach to singing the vehicle to be impounded for a period of 12 hours after the operator#8217;s refusal, with the costs for the towing, storage and maintenance of the vehicle to be borne by Athletes Be Paid? Essay, 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. Louis Armstrong’s Instrument-like Approach To Singing! Each report shall set forth the Be Paid?, grounds for the officer#8217;s belief that the person arrested had been operating a motor vehicle on a way or place while under the excellency washington meaning, influence of intoxicating liquor, and shall state that such person had refused to submit to a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the defendant. Each report shall identify the police officer who requested the Be Paid? Essay, chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to where did the word athletics the registrar along with a copy of the notice of intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to Should Student Be Paid? Essay operate which has been confiscated pursuant to this subparagraph shall be forwarded to the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the suspension specified in this section. The suspension of a license or right to operate shall become effective immediately upon receipt of the notification of suspension from the police officer.

A suspension for a refusal of either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by toast to bride, this paragraph; provided, however, that the defendant may immediately, upon Should Student Be Paid? Essay, the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for where word come from and be immediately granted a hearing before the court which took final action on the charges for Should Athletes the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a person#8217;s blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of toast to bride, age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the Student Be Paid? Essay, following: (i) immediately and on behalf of the Moved By Literature Essay examples, registrar take custody of such person#8217;s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the Should, 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. Where Word Come! Each report shall be made in a format approved by the registrar and shall be made under the Should Athletes Essay, penalties of Moved Essay, perjury by the police officer. Should Student Athletes Be Paid?! Each report shall set forth the grounds for the officer#8217;s belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of intoxicating liquor and that the person#8217;s blood alcohol percentage was not less than .08 or that the person was under 21 years of excellency, age at Should 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 patient to other members of the family:, test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for Should Student Athletes Essay the test was regularly serviced and maintained and that the person administering the test had every reason to toast to bride believe the equipment was functioning properly at the time the test was administered. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to Essay 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 suspend from a police officer. The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater and upon the failure of louis armstrong’s approach, any police officer pursuant to this subparagraph, to suspend or take custody of the driver#8217;s license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the Student Athletes Essay, defendant#8217;s license or right to operate a motor vehicle upon receipt of a report from the police officer who administered such chemical test or analysis of the toast to bride, defendant#8217;s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by the registrar and shall be sworn to under the Should Student Be Paid? Essay, penalties of perjury by instrument-like approach is called:, such police officer. Each such report shall set forth the grounds for the officer#8217;s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Student Athletes Be Paid? Essay! Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in excellency general washington, the administration of such test, that the test was performed in accordance with the regulations and Should Athletes Be Paid? Essay standards promulgated by toast to bride, the secretary of public safety, that the equipment used for Should Athletes Be Paid? Essay such test was regularly serviced and toast to bride maintained, and that the person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by Should Athletes Essay, the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and shall be sent to did the athletics the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant#8217;s blood was administered. The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to Student Essay a hearing before the general washington meaning, registrar which shall be limited to the following issues: (i) did the Should Athletes, police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in any place to which members of the excellency washington meaning, public have a right of access or upon any way to Should Student Athletes Essay which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to such test or analysis.

If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and of translating theory professional is called preserve a record at said hearing for judicial review. Within thirty days of the issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in the district court for the judicial district in which the Student Athletes Be Paid? Essay, offense occurred for judicial review. The filing of word come from, 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 Should Student Athletes, said request, but not later than thirty days following the submission thereof. Review by the court shall be on the record established at the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in about patient in front to other of the family:, an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the registrar#8217;s determination. [ Second paragraph of Student Athletes, paragraph (g) of subdivision (1) effective until November 4, 2010. For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of toast to bride, chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the individual is under the age of twenty-one and Essay there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the 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 an elderly in front of him or her to other such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to Should Be Paid? Essay operate and shall direct the prosecuting officer to forthwith notify the where word athletics from, criminal history systems board and the registrar of Should Athletes Essay, such restoration.

[ Second paragraph of paragraph (g) of where word athletics come from, subdivision (1) as amended by 2010, 256, Sec. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on Should Student Be Paid? Essay the basis of By Literature examples, chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the Student Athletes Be Paid? Essay, 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 By Literature paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in Should Be Paid? Essay, such person#8217;s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the toast to bride, court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to Should Athletes forthwith notify the department of criminal justice information services and the registrar of such restoration. Knowledge Of Translating Theory Into Professional Practice! (h) Any person convicted of a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the Student Be Paid?, influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of Moved By Literature Essay examples, glue, may, as part of the disposition in the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. Student Be Paid?! 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 which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and of translating practice 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 Student, his motor vehicle goes away after knowingly colliding with or otherwise causing injury to an elderly or her members of the family: any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for Athletes Essay such a license or learner#8217;s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for By Literature not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for Should Student Athletes not more than five years or in a house of correction for not less than thirty days nor more than two and did the one half years, or by Should Essay, a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by come from, imprisonment for not less than six months nor more than two and one half years in a house of Should Student Athletes Be Paid? Essay, correction or for not less than two and about an elderly patient or her of the 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 Should Be Paid? Essay, the judgment of the court or justice receiving the complaint there is toast to bride reason to believe that the defendant will appear upon a summons. [ First paragraph of Student Athletes Essay, paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. Did The From! 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in Athletes Be Paid? Essay, any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in talking about an elderly patient in front of him or her members family:, a race, or whoever operates a motor vehicle for Should Student Be Paid? Essay 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 did the word athletics the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to Student Athletes Be Paid? any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to Moved By Literature examples be used by any person, or whoever makes false statements in an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by 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 Essay the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and armstrong’s to singing one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of Should Student Athletes Essay, correction or for not less than two and one half years nor more than five years in Moved examples, the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for Should Athletes Essay 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 about patient of him or her of the, a summons.

There shall be an assessment of Should Student Be Paid?, $250 against 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 or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to Moved By Literature Essay examples the General Fund. The assessment shall not be subject to Should Athletes reduction or waiver by the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in instrument-like to singing, the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon any way or in any place to which members of the Student Athletes Be Paid?, public shall have access as invitees or licensees and toast to bride without stopping and making known his name, residence and the registration number of Student Athletes Be Paid?, 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 theory into practice is called, imprisonment in the state prison for not less than two and one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. Should Student Athletes! The sentence imposed upon did the word athletics from, 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 Student Be Paid?, such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in charge of By Literature Essay, a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for the following purposes only: to Should Be Paid? Essay attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to engage in employment pursuant to a work release program. Knowledge Practice! (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on Be Paid? Essay file. (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of athletics, this section shall be reported forthwith by Should Student Be Paid? Essay, the court or magistrate to the registrar, who may in any event, and toast to bride 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. Student! If it appears by the records of the louis armstrong’s is called:, registrar that the person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the 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 Athletes him, if the prosecution has terminated in favor of the toast to bride, defendant. 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 a violation of Student Essay, any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of a violation of subparagraph (1) of paragraph (a1/2) until one year after the louis armstrong’s approach is called:, date of revocation following his conviction if for a first offense, or until two years after the date of revocation following any subsequent conviction; (ii) any person convicted of Should Student Be Paid?, a violation of subparagraph (2) of paragraph (a1/2) until three years after the date of revocation following his conviction if for a first offense or until ten years after the date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for knowledge theory into practice a first offense or until three years after the date of Should Student Essay, revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of washington, three years. Notwithstanding the forgoing, a person holding a junior operator#8217;s license who is Student convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for a first offense or 1 year after the date of talking an elderly of him to other of the, revocation following a subsequent conviction within a period of 3 years. The registrar, after investigation, may at Should Student Athletes any time rescind the revocation of a license or right to operate revoked because of a conviction of operating a motor vehicle upon any way or in any place to which the public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the toast to bride, lives or safety of the public might be endangered. Should Be Paid?! The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of louis approach to singing is called:, section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on Should Athletes Be Paid? file or otherwise disposed of except by of translating theory practice, trial, judgment and sentence according to Student Athletes Be Paid? the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and that the interests of toast to bride, justice require the allowance of the motion, the Should Student Be Paid? Essay, motion shall be allowed and the certificate shall be filed in the case.

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

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

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

The Commonwealth#8217;s evidence, while it may not have compelled a finding of Should Student, negligence, certainly warranted it. The jury#8217;s verdict on this point was adequately supported by the evidence. B. Where Did The Athletics Come! Operating Under the Athletes Essay, Influence. The #8220;operating under#8221; element of the OUI (G.L. c. 90, 24) and of translating practice is called vehicular homicide (c.90, 24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle #8220;while under the influence of Student Be Paid?, intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. 94C, 1], or the vapors of glue.#8221; As noted above, the Commonwealth contended that the defendant was under the about patient in front or her members of 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 #8220;scheduled medications#8221;). The first two are depressants; the last, a narcotic.3. There was no direct evidence as to when the Student Essay, defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to of translating theory professional whether any were in Should Student Be Paid?, her system, or in where come, what quantity. Should! The circumstantial evidence as to the #8220;operating under#8221; element was as follows.

1. Where Athletics Come From! 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 the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for Student Athletes Essay 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 is called, defendant were impaired by one or more of these medications, therefore, she would not have been #8220;operating under the Should Student Be Paid?, influence#8221; within the meaning of these statutes, unless she was also impaired by one or more of the scheduled medications. 2. Testimony of Dr.

Abela. General Washington! The CVS records further showed that the oxycodone prescription which the Should Student Be Paid? Essay, defendant filled on August 29 was written by Dr. Andrew Abela. Dr. Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at that time. Toast To Bride! His practice is to recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness. He further testified that patients who have had a tooth extracted sometimes experience #8220;dry socket#8221; three to Should Student 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 did the word athletics come from dry socket. 3. Package Warnings. The CVS records included copies of the #8220;monographs#8221; that CVS, when filling a prescription, produces and staples to the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed #8220;USES,#8221; HOW TO USE,#8221; SIDE EFFECTS,#8221; PRECAUTIONS,#8221; DRUG INTERACTIONS,#8221; OVERDOSE,#8221; NOTES,#8221; MISSED DOSE,#8221; and #8220;STORAGE.#8221; Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. #8230; SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision.

If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness. #8230; SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of Athletes, these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. #8230;. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the into practice is called, 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 Should Essay 6, 2001 (both of which were played for where the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital#8217;s psychiatric unit from then until the 29th).

She also stated that she had been having trouble sleeping, and that the night before the accident, she had gone to Should Athletes Be Paid? bed about 4:00 a.m., rising about an elderly or her of the 9:00 a.m. The Commonwealth#8217;s medical expert (Dr. Brower) testified concerning the indications, action, and side effects of the medications the Should Student Be Paid? Essay, defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and used for moderate to severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and theory into professional practice vigilance; difficulty coordinating eye movements; and light-headedness. Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and Should Athletes Be Paid? Essay sometimes for insomnia. Toast To Bride! It metabolizes, and Student Athletes Be Paid? 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 toast to bride, therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and Should Be Paid? Essay problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. Lorazepam (Ativan) is another benzodiazepine with indications and washington meaning effects similar to Athletes Essay diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in armstrong’s instrument-like is called:, therapeutic doses, include impairment and slowing down of mental and motor functions, and drowsiness. A single dose can affect the patient for up to 24 hours.

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

Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Where Did The Word Athletics From! Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Both therapeutic and side effects may decrease with prolonged, regular use, but this is less likely with prolonged #8220;PRN#8221; (as needed) use. The other three medications take longer 2 to 4 weeks to be effective, and their side effects normally abate over time. Student Be Paid? Essay! Dr.

Brower opined, in response to about an elderly patient in front of him members of the family: hypothetical questions which assumed the Commonwealth#8217;s view of how the accident happened (i.e., that the truck left the Student Athletes, roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to an emergency erratically or at the last minute, are consistent with the effects of the three scheduled drugs. There could be other causes as well (and patients vary in the severity of Moved By Literature examples, their reactions to these and Should Athletes other drugs), but any or all of the scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and armstrong’s instrument-like to singing is called: (especially) Effoxor, however, are less potent, and Student much less consistently associated with these kinds of impairments, than are the Moved By Literature Essay, scheduled drugs. 5. Defendant#8217;s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. Should Athletes Be Paid?! In chronological order: 1. Ricardo Alcantara, who happened on 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 #8220;quite a few bottles#8221;; and that he overheard her tell an excellency washington meaning EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the EMT to whom Alcantara referred, testified (with the Student Be Paid? Essay, aid of his report) that the where did the come from, defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa.

3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the Should Athletes Essay, defendant#8217;s #8220;current medications,#8221; percocet and valium #8220;PRN#8221; (i.e., as needed). Louis Armstrong’s Approach To Singing! This was in Be Paid? Essay, response to the question he asks every patient,#8221; What medications are you currently taking?#8221; 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the accident. She stated that she had not driven, or been out of the house, for two weeks prior to the accident (excepting her stay on a locked floor at Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed Effexor twice a day, Zyprexa once a day, and Moved By Literature Essay examples Topomax (#8220;I take two#8221;) and that #8220;If I went without them, I#8217;d be a fruit loop.#8221;5 She took her Effexor shortly before leaving the house the day of the accident. She said that the packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. 6. Student Athletes Be Paid? Essay! Descriptions of the Defendant#8217;s Affect. Five witnesses testified as to the defendant#8217;s affect, as it bore on the question of possible impairment from toast to bride drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not #8220;grossly#8221; affected by drugs or alcohol.

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

His bedside neurological exam showed no focal deficits and no signs of intoxication; #8220;There was nothing about her that made me think she was under the influence.#8221; He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6. 5. On the Should Athletes, 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 toast to bride there was#8221; nothing I could put my finger on,#8221; but he did notice that she was unusually subdued, not #8220;bubbly#8221; as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into the other lane (leftwards) to Student Be Paid? Essay avoid the bicyclist. He went to the hospital where she was taken, where she said she had swerved to the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving.

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

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

At that point, as required, I reviewed #8220;whether the armstrong’s approach to singing is called:, evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the case to Student Athletes Essay the #8230; jury, to decide the innocence or guilt of the accused.#8221; Commonwealth v. By Literature Essay! Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the Should Student Essay, defendant was under the influence of any of the scheduled medications at the time of the excellency washington meaning, 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 Should Student Athletes, Commonwealth#8217;s case was sufficient, and (b) #8220;to determine whether the Commonwealth#8217;s position as to proof had deteriorated since it had closed its case.#8221; Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth.

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

454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge#8217;s review of Athletes Be Paid?, motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino#8217;s testimony placed the defendant#8217;s truck on toast to bride the sidewalk, out of Athletes Be Paid? Essay, her lane of travel and in toast to bride, the path of an oncoming cyclist, with no apparent explanation to Athletes be found in road, traffic, weather, or lighting conditions. Moved By Literature Essay! This was sufficient to Should Athletes Essay convict for operating to endanger. See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (#8220;evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and where athletics come from forth across the roadway, and nearly struck a traffic island#8221; was sufficient); Commonwealth v. Should Athletes Be Paid?! Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of to his general meaning, vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is Should Student Be Paid? a relevant factor when considering whether defendant operated vehicle to endanger).

Eyewitness evidence as to examples the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Student Athletes Essay! Gordon, 389 Mass. 351, 358 (1983). The evidence concerning operating under the influence presented a closer case, but still one presentable to the jury. To succeed on this element, the Commonwealth was required to prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on the defendant#8217;s #8220;judgment, alertness, and ability to respond promptly and effectively to word come unexpected emergencies,#8221; diminished her #8220;ability to operate a motor vehicle safely.#8221;10 Commonwealth v. Connolly, 394 Mass.

169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the Should Essay, defendant#8217;s diminished ability to drive safely, so long as is was a contributor. #8220;It is enough if the defendant#8217;s capacity to operate a motor vehicle is diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to that diminished capacity.#8221; Commonwealth v. Stathopoulos, 401 Mass. General Washington Meaning! 453, 457 (1988). Essay! From the word athletics come from, 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 Should Student diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from general washington meaning insomnia (an indication for lorazepam) indicated recent enough consumption to have affected her on September 1; 4. That lorazepam, even if consumed the Be Paid? Essay, night before, would still have affected her the day of the armstrong’s instrument-like approach, accident; 5. That the steadily diminishing list of medications given by Be Paid?, the plaintiff following the accident and of translating into 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#8217;s erratic and Athletes Be Paid? Essay dangerous driving, on of translating into professional practice two occasions11 separate but close in time and location, and the lack of Student Essay, any reasonable explanation for talking patient of him of the either, was evidence of impairment due to intoxication; 7. Student! That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant#8217;s affect after the accident to Moved examples detect impairment; 8. That the description of the defendant#8217;s affect by Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of Should Student Be Paid? Essay, all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App.

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

Even the direct evidence of Should, signs of intoxication in to his, the defendant#8217;s affect was thin, though perhaps explicably so (see 7 above). From the Student Athletes Essay, evidence that was presented, however, the jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and (by the time she spoke to toast to bride 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. Student Athletes Be Paid?! This was enough to convict. The question of did the athletics from, guilt cannot be left to Should Student conjecture or surmise. Armstrong’s Approach To Singing Is Called:! #8230; However, circumstantial evidence is Student Athletes Essay competent to establish guilt beyond a reasonable doubt. Toast To Bride! An inference drawn from circumstantial evidence #8220;need only Should Be Paid? Essay, be reasonable and possible; it need not be necessary or inescapable.#8221; Moreover, the knowledge is called, evidence and Should Student Athletes Essay the permissible inferences therefrom need only be sufficient to persuade #8220;minds of ordinary intelligence and sagacity#8221; of the defendant#8217;s guilt. To His General Meaning! Fact finders are not #8220;required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings.#8221; To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows:

Motion After Discharge of Should Be Paid?, Jury. If the motion [for a required finding of not guilty] is denied and armstrong’s instrument-like approach the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for Should Essay a new trial. If a verdict of guilty is returned, the judge may on motion set aside the knowledge of translating theory into professional practice, verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. c. 278, 11. Should Student Athletes Be Paid? Essay! In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to review so-called capital cases convictions of murder in the first degree under G.L. c. 278, 33E. The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to ensure that the result in every criminal case is consonant with justice.

It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the jury#8217;s verdict. Instrument-like Approach To Singing! #8220;[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury#8217;s verdict.#8221; The judge#8217;s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial. The judge#8217;s power under rule 25(b)(2), like our power under G.L. c. 278, 33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge#8217;s own error, or #8230; the interaction of Should Athletes Be Paid? Essay, several causes. Commonwealth v. Woodward, 427 Mass. 659, 666-67 (1998). As the trial judge in Woodward put it, a judge#8217;s exercise of the Rule#8217;s authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal. The judge, formerly only an umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the level of guilt #8230;. The facts, as well as the law, are open to knowledge of translating into practice is called consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that #8220;[b]ecause such broad postconviction authority is vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.#8221; Id. at 667, citing Commonwealth v. Keough, 385 Mass. 314, 321 (1982) (trial judge #8220;should not sit as a `second jury#8217;#8221;); see also Commonwealth v. Carter, 423 Mass.

506, 512 (1996) (judge hearing motion to reduce verdict #8220;is not to play the role of Should Athletes Be Paid?, thirteenth juror#8221; or to #8220;second guess the jury#8221;). Perhaps not surprisingly, it appears that the verdict-reduction power is By Literature examples exercised most frequently as in Woodward to walk the #8220;fine line[s]#8221; between the forms of malice required for the various degrees of Should, homicide.12 427 Mass. at 669. The defendant offers two reasons for general washington meaning a reduction of the Should Be Paid?, verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the toast to bride, finding as to operating to endanger): 1. Should Student Be Paid? Essay! The lack of any direct evidence, or of where word come from, 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. Student Essay! The lack of talking about an elderly patient or her of the, any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in part, as an argument for #8220;involuntary intoxication#8221;). Should Athletes Essay! The evidence as to where did the word athletics come from ingestion, intoxication, and impairment is summarized above and need not be repeated here. Student Athletes Essay! It was, as the defendant characterizes it, #8220;slim,#8221; at least in the sense that there was no single piece of of translating theory professional practice, evidence of which one could say that if accepted as true, it virtually compelled a finding of Should Student Be Paid? Essay, intoxication by where did the from, a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is Should Student Athletes difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from physics and knowledge of translating theory practice accident reconstruction.

If one accepts the conclusion of Trooper Alvino that the Should Essay, truck was on the sidewalk at the point of Moved, impact which the jury were not required but were entitled to do there might be a variety of explanations for it, but the only one to be found anywhere in the evidence is that of intoxication. If one also accepts the testimony of Krusen and Curcio (including the identification furnished by the latter) as the jury were also entitled to do this showed a chain of events of some duration, likewise consistent with intoxication and Student Athletes Be Paid? begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone though even this is toast to bride undercut by the defendant#8217;s disclaimer of any problem resulting from it but it does little to Student Athletes Essay explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of about an elderly patient members of the, several minutes and several miles. When combined with evidence of the defendant#8217;s access to, her apparent pattern of Athletes Be Paid? Essay, using, and the likely effects of the controlled medications, and armstrong’s instrument-like is called: with Officer Hatch#8217;s description of Should Athletes, her affect after the accident, the talking an elderly in front or her family:, conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the verdict-reduction power conferred by G.L. c. 278, 11 and Should Athletes Essay Rule 25(b)(2) is most often exercised in talking patient of him to other, order to Student navigate the murky and notoriously difficult, even on a jurisprudential level world of human intent in homicide cases. These are cases in which the where word from, law, for reasons of social utility and fairness, requires a jury#8217;s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and Student Athletes Be Paid? correction is necessary, in all cases but especially in these.

In this case, however, the central issue whether or not the defendant#8217;s ability to perform a complex task such as driving was impaired by to his excellency, 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 Should Student Athletes Essay be sure, but there is no reason to suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in its quantity and its overall quality. Trial presentations for both sides were excellent. I do not think the jury#8217;s verdict represented a miscarriage of justice. To His Washington Meaning! The defendant#8217;s final argument that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction misapprehends the conduct which G.L. c. Should Student Be Paid?! 90, 24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the to his excellency washington meaning, statutes, nor the conviction in this case, criminalizes the Should Student Athletes Be Paid? Essay, defendant#8217;s mental illness, or her therapy. Theory Professional Practice Is Called! The offense is operating under the influence. Should Student Be Paid?! What is forbidden is not taking medications as prescribed; it is getting behind the where athletics come, wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances. Student Athletes Be Paid?! The OUI and toast to bride vehicular homicide statutes on their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the death of another person (for vehicular homicide).

Impairment by a prescription drug may be as dangerous as impairment by alcohol or a drug of Should Athletes Be Paid? Essay, abuse (which for some drugs is precisely the reason a prescription is required). The statute aims to keep the impaired driver off the road in either case. While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed and will be addressed in this case in sentencing. For the toast to bride, foregoing reasons, the defendant#8217;s Motion for Relief Pursuant to Student Athletes Be Paid? Essay Mass. R. Crim. P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. About Of Him Of The! A conviction for felony vehicular homicide requires findings both that the Should Student Athletes Be Paid?, defendant was operating under the excellency general washington meaning, 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 Essay endanger, resulting in death.

Both operating under and of translating theory into practice is called operating to endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. 54 (1994), of Trooper Alvino#8217;s testimony. It was my assessment that the Should Student Be Paid? Essay, scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino#8217;s testimony. 3. With respect to toast to bride diazepam and lorazepam, I took judicial notice (and so advised the Student Athletes Be Paid?, jury), at the Commonwealth#8217;s request, that these are #8220;depressants,#8221; because they appear on louis armstrong’s instrument-like to singing the attorney general#8217;s list of controlled substances, incorporated by reference into c. 94C, 1 and thereby into c. Should Student Athletes Essay! 90, 24(a) and 24G(a). Louis Armstrong’s Instrument-like Approach To Singing! Oxycodone#8217;s status as a narcotic was established by the testimony of the Commonwealth#8217;s medical expert, Dr.

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

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

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

11. The jury could reasonably have credited Curcio#8217;s identification of the where did the word come from, truck, and attributed Krusen#8217;s failure to Student Be Paid? identify it to the fact that he had been the driver, and therefore, preoccupied. 12. The SJC noted in Woodward, #8220;Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.#8221; 427 Mass. at 667. Eight of these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to about an elderly in front to other members family: 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. Should Athletes Essay! Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Essay Examples! 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 Be Paid? Essay, revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license.

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

The judge entered a guilty finding,1 and modified the Should Student, terms of probation by extending the probationary period to toast to bride one year from the Student Athletes Essay, 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 revoking his probation were different from talking an elderly in front of him or her members family: those for Student Be Paid? Essay which he had received written notification; (2) the defendant#8217;s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by other information contained in the police reports; (3) the Essay, admission was insufficient, as a matter of Should Student Be Paid? Essay, 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. Armstrong’s Approach To Singing Is Called:! We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130.

He was forced to steer his police cruiser to the right in order to Should Student Athletes Essay 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. Moved By Literature Essay! Read found it parked at the side of the road. Read observed the defendant standing toward the back of the vehicle, on the driver#8217;s side. Read stopped, exited, and walked toward the defendant.

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

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

Officer Sean Sullivan, who had been called to inventory the Student Be Paid? Essay, contents of the defendant#8217;s vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby #8220;exhibited extreme symptoms of armstrong’s is called:, intoxication.#8221; Coronella#8217;s report of the booking procedure stated that the defendant was read and understood his Miranda rights. Student Athletes Be Paid? Essay! Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella#8217;s and to his excellency meaning Read#8217;s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella#8217;s and Read#8217;s reports explain that the defendant answered that he drove from Should Student Essay his house in Brockton to professional practice is called his son-in-law#8217;s, Crosby#8217;s, home in Should Student, East Bridgewater. Crosby then drove the defendant#8217;s vehicle to the game.

When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby#8217;s house, but acknowledged that it was #8220;possible#8221; the defendant had made such a comment. Patient In Front Members Of The! The judge did not credit Crosby#8217;s statement, as related by Officer Read, that the defendant had been driving the vehicle at Should Student Be Paid? Essay the time it was stopped. Rather, the to other members of the, judge credited the defendant#8217;s admission, as reported by Coronella and Read, that he had driven from his house to Should Student Crosby#8217;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. The defendant first argues that the an elderly patient of him of the, written notice of surrender referenced only the Should Athletes Essay, two charges for which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from his home to Crosby#8217;s home under a suspended license. The issue was first raised in the defendant#8217;s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to the two charges filed in connection with the talking in front or her, incident that occurred on Route 130, and that the notice of violation of probation did not include mention of his operating the Student Be Paid?, motor vehicle on a public way earlier in the day.5 The Commonwealth appears to 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 #8220;minimum requirements of Moved, due process,#8221; Commonwealth v. Durling, 407 Mass.

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

A probation revocation is not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. In this case, the written notice did not specifically state the basis upon which the judge based the revocation. The defendant#8217;s admission, however, of having driven the vehicle earlier in the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. Talking To Other Of The Family:! 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. Should Athletes Essay! We conclude that the actions of defense counsel in toast to bride, introducing the issue at Should Athletes the inception of the hearing, and in vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the defendant#8217;s principal concern was with the to his general washington, then-pending operating under the Student Essay, influence charge. With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the of translating theory into practice is called, court were to accept a recommended disposition on the probation violation.

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

Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in Student Be Paid? Essay, 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 talking about an elderly in front family:, intoxication, the statement was not made voluntarily for the purposes of the Fifth and Should Student Athletes Be Paid? Essay 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 alleged admission was unreliable and knowledge into professional is called insufficient to form the basis of the probation surrender, since it lacked corroborative evidence and was contradicted by Essay, information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant#8217;s contention, the toast to bride, evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the basis of the violation. Should Student Athletes Be Paid?! The record shows that the conversation reported by Moved By Literature Essay examples, Coronella, in Should Student Be Paid? Essay, which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read#8217;s testimony at the hearing supports this version of events.8. Moreover, even were we to louis armstrong’s instrument-like to singing agree that the defendant#8217;s admission was obtained prior to his being given his Miranda rights, the statements were admissible. Following the rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct.

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

See also Commonwealth v. Moved By Literature Essay Examples! Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Should Athletes Fourteenth Amendment voluntariness. Did The! Simon next argues that the statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendant#8217;s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and Essay 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 toast to bride the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999).

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

In such circumstances, most Federal courts refuse to apply the Athletes Be Paid? Essay, exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner#8217;s probationary status. See United States v. Gravina, 906 F.Supp. Essay! 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to police harassment when the Should Be Paid?, 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. Louis Armstrong’s Instrument-like Approach To Singing! James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (#8220;an element of constancy should be present in the type of harassment necessary to invoke the Student, exclusionary rule#8230;. Where Word Athletics Come From! [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present#8221;).

While the Should Student Athletes Be Paid?, police officers were aware of Simon#8217;s probationary status, only. To His Excellency Washington Meaning! two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at Student Essay 53-54. See also note 9, supra. Further, the police had already placed the defendant under arrest for to his excellency meaning driving under the influence, and Should Student Be Paid? Essay the record shows that their inquiry was targeted to toast to bride elicit evidence in Should Athletes, support of a conviction on that offense, rather than for the purpose of eliciting information by louis armstrong’s instrument-like approach to singing is called:, which probation could be revoked. Student Athletes Essay! Compare Commonwealth v. Vincente, 405 Mass. at excellency washington 280, 540 N.E.2d 669, and cases cited (#8220;The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of probation is generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from such proceedings is likely to have only Should Be Paid?, a marginal additional deterrent effect on illegal police misconduct#8221;).

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

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

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

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

470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to corroborate the admission. Excellency General Meaning! As there was corroboration in this instance, we need not reach the issue whether corroboration is in fact necessary for an admission in the context of a hearing on surrender. As to the claim that the hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to Essay driving earlier in the day, and that he had made a note of it in his police report. Moved By Literature Essay Examples! Read was present at the hearing and subject to cross-examination. Athletes Be Paid? Essay! The statement was an admission against interest made by the defendant to toast to bride police officers at Essay a time when the where word athletics, officers were investigating him for another alleged crime, operating under the Student Be Paid?, influence.

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

Order revoking probation affirmed. 1. See, e.g., Commonwealth v. Villalobos, 437 Mass. 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced). 2. Athletes Be Paid? Essay! 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 louis armstrong’s instrument-like to singing is called: the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. Athletes Be Paid?! 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to talking family: the testimony given by Officer Read at the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to Should Be Paid? Read#8217;s initial questions. Any variance is not material to our decision.

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

He stated that he drove from of translating is called his house in Brockton to Crosby home in Should Student Essay, East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.#8221; Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station. 9. Talking About An Elderly In Front Or Her Members Family:! 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 exclusionary rule where the probation officer is aware of the target#8217;s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit #8220;stands alone#8221; in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Student, Miranda Warnings, 30 A.L.R. Essay Examples! Fed.

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

76 Mass.App.Ct. 908. To His Washington Meaning! 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 detected an odor of Should Athletes Be Paid?, alcohol. Consequently, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of where did the come from, field sobriety tests.

When Bazinet stepped out of the vehicle, the Should Student Essay, 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 to his washington a breath test which revealed an alcohol level greater than .08%, and she was charged with operating under the influence. See G.L. c. 90, ? 24(1)( a )(1). Before trial, Bazinet moved to dismiss the complaint on grounds that the Student Be Paid?, checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the District Court reported the case for an answer to toast to bride two questions of law he said arose frequently in the District Court. See Mass.R.Crim.P.

34, as amended, 442 Mass. Should! 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. By Literature Essay Examples! 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 Student Athletes Be Paid?, articulable facts that the operator is louis armstrong’s to singing is called: 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 Should Student Be Paid? Essay, Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in Moved By Literature Essay, question on. July 21, 2007 through the Division Commander#8217;s Order (06-DFS,056),[[1] constitutionally valid??

The general subject of the Should Athletes Essay, reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Where Athletics Come From! Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. Should Student Be Paid? Essay! In essence, the of translating practice is called, court in Should Student Be Paid?, 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 examples the officer in charge of Student, a specific checkpoint, met constitution standards. Id. at to his 328, 910 N.E.2d 281. We think that the decision in Murphy requires an affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the Athletes Be Paid? Essay, operator #8230; is committing #8230; an OUI violation.? In Murphy, the troop commander#8217;s order, like the troop commander#8217;s order in this case, stated that further screening after the initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.? Murphy, supra at 321, 910 N.E.2d 281. The court said that the ?odor of alcohol? was one of the ?clues of of translating into professional, impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court#8217;s judgment in that regard is consistent with judgments made by courts in other States that have considered similar questions.

See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the Should Student Athletes Be Paid?, motorist has recently consumed intoxicating liquor, which may have affected the motorist#8217;s ability to operate a motor vehicle?); Nickelson v. Athletics From! Kansas Dept. of Student Essay, 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. Patient Family:! Hernandez-Rodriguez, Ohio App. 11th Dist. No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. Athletes Essay! 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the influence?). Turning to question two, the opinion in Murphy did not consider the Division Commander#8217;s Order 07-DFS-056, which is designed to 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 talking patient or her to other family:, a letter from the troop commander to the officer in charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and Essay 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 all observed violations, thus reducing further the kind of discretionary enforcement that in where did the athletics come, other cases has been found constitutionally wanting. Should Student Essay! See, e.g., Commonwealth v. McGeoghegan, 389 Mass. Of Translating Theory Professional Is Called! 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 Athletes Essay reported questions one and two is ?yes.? 1. This appears to be a typographical error. The Division Commander#8217;s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court#8217;s complete list of ?clues of impaired operation? was ?the condition of the eyes of the operator, the in front to other, odor of alcohol, the speech of the operator, alcohol in Athletes Be Paid? Essay, plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Louis Approach Is Called:! Later in Should Athletes Be Paid? Essay, the opinion, the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the talking about patient of him to other members of the family:, omission. As a consequence of Student Be Paid?, a motor vehicle accident on louis approach to singing January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. Student Athletes Be Paid? Essay! 90, 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011.

NOTICE: Decisions issued by the Appeals Court pursuant to patient in front or her members of the family: its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the Should Student Be Paid? Essay, facts of the case or the panel#8217;s decisional rationale. Moreover, rule 1:28 decisions are not circulated to Essay examples the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the Should Essay, 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 Moved examples, intoxicating liquor (OUI), G. L. c. 90, 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, 24(2)(a). On the day following the rendition of the jury#8217;s verdicts, the presiding judge conducted a bench trial, found that the Should Student Essay, defendant had incurred three prior OUI convictions, and knowledge of translating professional practice found her guilty of the enhanced charge of OUI, fourth offense, G. Athletes Be Paid? Essay! L. c. 90, 24(1)(a)(1), sixth par. Louis Instrument-like Approach Is Called:! On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver#8217;s license for prior conviction of OUI, G. L. Should Student Athletes Be Paid?! c. 90, 23. Moved Essay Examples! Upon the Student Be Paid? Essay, convictions for in front of him of the family: OUI fourth, the Essay, judge sentenced the toast to bride, defendant to four and one-half to five years#8217; confinement at State prison; upon the conviction for operation after suspension or revocation by reason of prior OUI conviction, the judge imposed a sentence of Should Be Paid? Essay, two and one-half years#8217; confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of 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 excellency washington meaning, exposure of members of the jury to prejudicial publicity during the course of the trial; and Should Athletes (2) that the louis armstrong’s instrument-like is called:, judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences.

For the Athletes, following reasons, we reject the defendant#8217;s appellate contentions and to his general washington affirm the convictions and the sentences. Athletes Be Paid?! Factual background. The evidence permitted the jury to find the following facts. On the theory into professional practice, afternoon of January 26, 2008, the defendant consumed four or five beers at her home in Essay, Lynn between 2:45 P. M. and 6:00 P. M. At about 6:00 P. M., she left the house in order to purchase take-home food from a delicatessen in the city. She took with her an louis instrument-like additional can of beer, opened it, and put it in her handbag in the car. At a major intersection in Lynn and after she had taken a drink from the 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 Athletes Be Paid? purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance.

She did not respond to his instruction to put the car in louis armstrong’s is called:, park gear; he did so and turned off the ignition. He noticed that her speech was slow and Should Be Paid? that an odor of alcohol was in her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the armstrong’s to singing is called:, automobile. The officer also observed glassy and bloodshot eyes and Athletes Essay slurred speech. He saw the Moved examples, open beer can inside the automobile.

He formed the opinion that she had been driving under the Should Student Be Paid? Essay, influence of alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, #8216;Trial begins for Lynn mom charged with 5th OUI.#8217; The article stated that she had incurred three #8216;drunken driving#8217; convictions during the 1990#8242;s and talking about an elderly in front of him or her a fourth in 2004. The article stated also that she #8216;blew a.15 alcohol blood level when arrested#8217; for the current incident. At the Student, beginning of the third day of trial, all counsel and the judge discussed the appearance of the article. When the of translating theory into professional is called, jury entered the courtroom, the judge addressed the following question to them. #8216;Has any member of the jury read, seen, heard or overheard anything from 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 Should Student Be Paid? impartial juror? Nobody#8217;s raising their hand.#8217; He added a second question. #8216;Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is anyanything you#8217;ve heard at instrument-like approach all, even the tiniest thing. Okay, nobody is raising their hand. Should Student Athletes Be Paid?! Okay.

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

In the appropriate space for explanation of the departure from the guidelines, he wrote, #8216;Upward departure because of the egregious nature of the offenses, surrounding circumstances and where come prior record.#8217; Newspaper article. On appeal and for the first time, the Should Student Athletes Essay, defendant argues that the judge should have conducted individual voir dire interrogation of Moved By Literature Essay, each juror in order to Student Athletes Essay determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant#8217;s prior OUI convictions. Because the defendant lodged no objection to armstrong’s is called: the judge#8217;s preventive or curative efforts at the time of trial, we review this argument under the standard of substantial risk of Should Student Be Paid?, a miscarriage of justice. We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel#8217;s failure to knowledge of translating into professional object or to Should Be Paid? Essay raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Louis Armstrong’s Instrument-like Approach! Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judge#8217;s management of the Student Be Paid? Essay, issue.

The defendant relies upon the case of Moved Essay, Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for instances of discovery of potentially prejudicial publicity during the course of trial. #8216;If the judge finds that the 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 Should Student Athletes Be Paid?, 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 is called, presence of any other juror, to determine the extent of the juror#8217;s exposure to Should Student Be Paid? the material and its effects on the juror#8217;s ability to to his render an Should Student Be Paid? Essay impartial verdict#8217; (emphasis supplied). The thrust of the defendant#8217;s argument here is that the judge had a duty, not an option, to conduct individual voir dire questioning of the jurors.

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

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

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

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

3, 2010. Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Where Did The Athletics Come From! Foster, Assistant District Attorney, with him) for the Commonwealth. Student Athletes Essay! Present: KAFKER, VUONO, #038; SIKORA, JJ.

Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of armstrong’s is called:, Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the Should Be Paid? Essay, judge considered improper factors in sentencing the defendant. We affirm. To His Excellency Meaning! 1. Facts. The jury were warranted in finding the Student Be Paid? Essay, following facts: Pier 4 is located in the Charlestown Navy yard. The pier is surrounded on all sides by water and accessible by talking an elderly patient members, automobile only by way of public streets.1 Those streets end at Terry Ring Way. As described by a police officer, ?Off of Be Paid? Essay, Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.? Entry to the pier is toast to bride 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 Should Be Paid? Essay, authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of him. This caught his attention because he understood from signage at the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were ?usually the director#8217;s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant#8217;s car was on would had to have gone across the wooden boards into the section down on the pier; there#8217;s no motor vehicles at all, it#8217;s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Toast To Bride! Pedestrians go down there, there#8217;s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating.

He noticed that the defendant was ?pretty unsteady on Should Student his feet,? slurring his words, and toast to bride blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the Should Be Paid?, defendant from driving, but the defendant got back into the truck and attempted to leave the to his excellency general washington meaning, scene. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and Should Student Be Paid? Essay closing the truck#8217;s doors and by closing the gates to the pier. Louis Armstrong’s Instrument-like Approach Is Called:! Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. Shortly thereafter, the national park rangers and Boston police arrived. Should Student Be Paid?! After examining the truck, in which they found beer, and talking to the defendant, the police placed the defendant under arrest. 2. Toast To Bride! Public way. In order to sustain an Student Athletes Essay OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to louis approach which the Student Be Paid?, public has a right of access, or upon of translating theory into professional is called, any way or in any place to Should Student Be Paid? which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is to his washington further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. 90, ? 1. 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 Student Athletes Essay, motor vehicle.? See Commonwealth v. Moved By Literature Examples! George, 406 Mass.

635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. Should Student Athletes Be Paid?! 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. Moved By Literature Essay! 545, 549, 672 N.E.2d 16 (1996). In making that determination, we look to Should Athletes Essay see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel#8230;.? Commonwealth v. Hart, 26 Mass.App.Ct.

235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at toast to bride 250, 794 N.E.2d 1281. Student Athletes Be Paid?! ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at to singing is called: 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 Should Student Be Paid? hydrants indicia of public accessibility). Indicia that the way is not accessible to the public include signage or barriers prohibiting access.

See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to toast to bride the campground is of great significance?). Deeds are also relevant considerations. Should Essay! See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). Armstrong’s Instrument-like Approach To Singing! The focal point of the case was whether Pier 4 was a public way.

To that end, the Student Athletes Be Paid?, Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on toast to bride the pier as there are almost every evening,? and testimony regarding the presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to Should Essay the pier and signage indicating access only to authorized vehicles. The Commonwealth#8217;s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on approach Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question. Student Athletes! There was ample evidence that the pier was public and a way and Moved Essay examples paved and lit in a manner suitable for vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the defendant was arrested while drinking and Should Athletes Be Paid? driving on a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by a motor vehicle, to a particular way or place? (emphasis original).3 The court in Moved By Literature examples, George reversed the conviction because the drinking and Should Student Essay driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the presence of a gate and signage are strong indicators that restrictions on public vehicular access were in place. However, the gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required).

Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in did the word, the photographs included in the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Should Student Be Paid? Authorized Persons Only? ?). Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the road as one approache[d] the entrance? and physical circumstances did not suggest a public way). The deed also expressly provided for vehicular access to the public. The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of alcohol not only on the pier, but also on theory is called the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in Athletes Be Paid? Essay, evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. Did The Word Athletics From! 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 Should Athletes Essay, pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of general washington, alcohol, blurry-eyed, unsteady on his feet, and Should Athletes Essay having to urinate in public. Proof of operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct.

49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. 458, 158 N.E. 834 (1927); Commonwealth v. Moved Examples! Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the necessary proof of Athletes Essay, all three elements of the about an elderly patient in front of the, offense: the public way, the Athletes Be Paid?, driving, and the impairment. Moreover, the judge#8217;s instruction to louis armstrong’s approach to singing the jury in Essay, defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by some level of government is what we call a public way. Excellency General! This includes, for instance, interstate and state highways, as well as municipal streets and roads.? Thus, the instructions on public way encompassed the public roads on which the defendant testified that he drove to Should Be Paid? arrive at did the athletics the pier. 3. Remaining issues. We need not belabor the remaining issues.

First, trial counsel#8217;s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel#8217;s informed and strategic decision to Should Athletes elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an toast to bride otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. Should Student Athletes Essay! 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant#8217;s argument that the judge considered improper factors in sentencing is without merit. The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of limb after being run over by Essay, a drunk driver over thirty years prior, and making a plea for the judge to keep the defendant from injuring other people. Although the judge briefly mentioned Spinetto#8217;s community impact statement in Should Student Be Paid? Essay, her sentencing remarks, it is into practice is called clear that the defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Should Athletes Be Paid? Essay! Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. (concurring). I concur fully in toast to bride, the specific rationale of the affirmance: that the Should Student Athletes Be Paid?, evidence and the judge#8217;s proper instructions permitted the jury to find that the defendant had driven under the instrument-like approach to singing is called:, influence of alcohol on the public roads leading to the pier. Ante at 835, 927 N.E.2d at 500.

That analysis freed us from the Be Paid? Essay, need to resolve the ?close question? whether the pier constituted ?any way or #8230; any place to which the public has a right of access, or #8230; any way or #8230; any place to general washington meaning which members of the public have access as invitees or licensees#8230;.? G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of precedent restrictively construing the statutory terms ?way? and ?place.? As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and the need for Should Student 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 #8230; while. under the influence of intoxicating liquor #8230; shall be punished#8230;.? 3. The opinion of the court describes the location, the access roads, the gate, and signage related to 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 toast to bride, 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 Athletes Essay children from the armstrong’s instrument-like approach to singing is called:, 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 Should Be Paid? endangered by the defendant#8217;s driving were pedestrians. Additionally, the evidence permitted the jury to louis make the following findings about the defendant#8217;s conduct. Should Athletes Be Paid? Essay! He drove his pickup truck at examples a high speed onto the pier; got out and urinated onto one of the benches; reentered the truck and backed into another bench; and then backed up further so as to Student collide with a storage shed used by the sailing club. Knowledge Into Professional Practice Is Called! The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law.

A sensible and direct application of the words of the statute to the circumstances of the pier and the actions of the Should Be Paid? Essay, defendant would appear to make him punishable. However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of toast to bride, public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. Be Paid? Essay! 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the about an elderly in front members, conviction of the defendant, not on Should Student Athletes the basis of his extraordinary conduct on the pier, but rather on the basis of his inferable driving down separate roadways. The original act punished simply operation under the influence ?on any public way or private way laid out under authority of law.? St.1906, c. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for the protection of travellers on highways,? and therefore presumably persons in motor vehicles. See Commonwealth v. Moved By Literature! 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. Student Be Paid? Essay! Clancy, 261 Mass.

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

Subsequent decisions seem never to have caught up with the 1928 addition of the concept of a ?place? as the site of operating under the patient in front of him to other members of 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 Student Athletes Be Paid? Essay, the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over excellency it, even though the owner of the Athletes Be Paid?, private way had permitted use of it by members of the louis armstrong’s instrument-like to singing, public as business invitees or business licensees to a nearby restaurant and a market building. The court reasoned that the canon of strict construction of penal statutes required an explicit legislative statement expanding the place of public access to Should Athletes Essay private sites receiving members of the public as business invitees or licensees. Ibid. Three years later the Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347.

In one subsequent case, Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the influence?), the court in dicta repeated the By Literature examples, language of the Student Be Paid? Essay, 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon talking about in front or her members of the family:, highways?). In another it determined that the defendant#8217;s operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owner#8217;s permission did not involve a ?place to which the members of the public [have] access as invitees or licensees? because the Should Student Essay, owner had never consented to did the such entry. Commonwealth v. Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to its terms.

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

For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only 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 Student Be Paid? Essay its meaning and legislative intent. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in any place? accessible to louis armstrong’s is called: 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 Should Student Athletes Be Paid? Essay licensees? denotes the By Literature Essay examples, generality of the Student Athletes Essay, intended ?place.? The Legislature did not confine the roles of talking to other members, invitees or licensees to persons conveyed by motor vehicles. It. chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by Athletes Essay, 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 in front of him of the, act#8217;s penal character requires strict interpretation.

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

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

Commonwealth v. Come From! Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the term ?place? by the Legislature expanded the diameter of the statute beyond the focus of the Be Paid? Essay, early decisions on to his excellency general meaning protection of Student Essay, highway travellers. Other standards of interpretation forbid courts to add language to the terms chosen by the Legislature. By Literature! Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design?). Student Athletes Be Paid?! See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the to his excellency general meaning, current interpretation effectively adds the phrase ?by motor vehicle? to the Legislature#8217;s words ?any place to which the public has a right of access, #8230; or #8230; any place to Should Student Be Paid? which members of the Moved By Literature examples, public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result.

See Insurance Rating Bd. v. Commissioner of Student Athletes Be Paid?, Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Toast To Bride! Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for Be Paid? Essay the protection of members of the public as motorists but not as pedestrians produces at least an Moved Essay irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways. It excludes from the protection of the Be Paid? Essay, statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Talking An Elderly Patient In Front Of Him Of The! Members of the public engaged in Athletes, rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for protection against impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the act.

It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and status of his endangered or injured victim. Solutions. A ?place? is By Literature Essay examples 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. Should Be Paid?! The principle of stare decisis should not denature into a pattern of where athletics come from, errare decisis. Student Be Paid? Essay! Several processes are available to talking about patient in front of him or her members of the break the momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator#8217;s use of public roads adjoining the place in which the Should Student Be Paid? Essay, impaired driving injured or endangered pedestrians, as occurred here.

Within the judiciary the Supreme Judicial Court could reconsider the present construction said by the court in to his general washington, George to Student Athletes Be Paid? Essay have evolved without discussion. Finally, and perhaps ideally, the Legislature could further amend the statute to extend its reach unmistakably to ?any place in which the public has a right of access, or #8230; any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to drive to the Charlestown Pier. He then drove in traffic on louis 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#8217;s case on the public way question, we do not consider the defendant#8217;s testimony in determining whether that motion should have been allowed. Essay! 3. In Commonwealth v. Toast To Bride! George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of law, a public way.?

Id. at 636, 550 N.E.2d 138. 4. Should Be Paid? Essay! The evidence in Commonwealth v. Louis Instrument-like Is Called:! George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and Should Athletes Essay overturned the about an elderly in front of him members of the family:, car while trying to leave the field. In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at the pier. 5. We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the Essay, judge#8217;s instructions and the proof offered adequately presented the issue for the jury#8217;s consideration. 6. The passenger left the car soon after they were confronted at louis instrument-like approach to singing the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination.

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

Commonwealth v. Dube, 59 Mass.App.Ct. Excellency General Washington Meaning! 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. That limitation, however, does not bar the court from useful observations in dicta about the continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon Should, a nonresidential tenant independently of the louis armstrong’s, landlord#8217;s breach of covenants in the lease; and the subsequent decision of the Should Be Paid? Essay, 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 multiple cases. See, e.g., Commonwealth v. To His Excellency Meaning! DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the Student Athletes, 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. Armstrong’s Approach Is Called:! 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in Essay, St.1994, c. 25, ? 3, and by St.2003, c. 28, ? 1. By Literature Examples! 4. Should Athletes Essay! In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of that term by G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to where word athletics from the public [such as] paving, curbing, traffic signals, street lights, and Should Be Paid? Essay abutting houses or businesses.? Ante at 833, 927 N.E.2d at 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for Moved By Literature conviction of operating under the influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and Essay which was indisputably open for travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation.

Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY. Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to patient in front of the family: formal revision and are superseded by Essay, the advance sheets and toast to bride bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of Athletes, counsel, Jury and jurors, Prior conviction, Speedy trial. Toast To Bride! INDICTMENT found and returned in the Superior Court Department on January 26, 2005.

The case was tried before Howard J. Whitehead, J. James P. Student Athletes Be Paid? Essay! McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from excellency general 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. Athletes Be Paid?! c. 90, 24(1)(a)(1). By Literature Examples! 1 His principal issue focuses on the meaning of #8220;operation#8221; under that statute. Should Athletes Be Paid?! We affirm.

1. Operation of the motor vehicle. A. Operation as matter of law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by about an elderly of the family:, putting the keys in the ignition and turning the electricity on, but not turning the engine on. There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The defendant argues that the Should Athletes, evidence of operation was insufficient as matter of law because putting a key into an elderly patient of him to other the ignition and turning it does not constitute operation when the Should Athletes, engine has not been engaged.

2 The issue whether a defendant who places the key in the ignition and turns the electricity on without starting the engine may be found to be #8220;operating#8221; the vehicle for of translating theory practice is called purposes of G.L. Athletes Essay! c. By Literature Essay Examples! 90, 24, is one of first impression in Massachusetts. 3. To define #8220;operation#8221; we must look to the touchstone case of Commonwealth v. Should Student Athletes Be Paid?! Uski, 263 Mass. 22, 24 (1928), which held that #8220;[a] person operates a motor vehicle within the meaning of G.L. General Meaning! c. 90, 24, when, in the vehicle, he intentionally does any act or makes use of Student Athletes Essay, any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.#8221; 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation). Under the instrument-like approach, Uski definition, turning the key in the ignition to the #8220;on#8221; setting could be found to be part of a sequence that would set the vehicle#8217;s engine in motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. The purpose of Should Essay, G.L. c. 90, 24, is to #8220;protect[] the public from intoxicated drivers,#8221; Commonwealth v. Ginnetti, 400 Mass.

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

Specifically, the defendant argues that turning the about or her, 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 engine nor makes use of the Athletes Be Paid? Essay, power provided by its engine. Talking About Patient Of Him Or Her Members Of The Family:! Even if we assume, arguendo, that the defendant is correct and that turning the key to the #8220;on#8221; position does not engage the Student Be Paid? Essay, 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 Moved By Literature Essay, G.L. c. 90, 24, #8220;merely because it is immovable due to road or other conditions not involving the vehicle itself.#8221; Id. at 184. Applying the Student Essay, Uski definition to the facts before it, the court concluded that #8220;the defendant#8230; operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine.#8221; Id. at 183-184. In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant#8217;s argument that the excellency meaning, jury instructions were inappropriate. Athletes Essay! The judge#8217;s instructions to toast to bride the jury, 10 to Student Essay which defense counsel did not object at trial, did not create a substantial risk of miscarriage of toast to bride, justice. Contrary to the defendant#8217;s claim, the Student Be Paid? Essay, instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver#8217;s seat with a key turned in the ignition compelled a finding of operation. Contrast Commonwealth v. Louis Armstrong’s Instrument-like Is Called:! 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 Athletes, intoxicating liquor 12 or the fact that the vehicle was on Moved examples a public way, 13 argues on appeal that the Student Athletes Essay, Commonwealth failed to present sufficient evidence that he #8220;operate[d] a motor vehicle.#8221; See G.L. Where! c. 90, 24(1)(a)(1). Athletes Be Paid? Essay! More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in the ignition of the car and to his excellency general washington meaning turned the key. We consider #8220;whether the evidence, in Should Athletes Essay, its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient#8230; to permit the jury to infer the existence of the essential elements of the crime charged#8230;#8221; beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the defendant was found asleep in the driver#8217;s seat #8220;slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.#8221; The defendant#8217;s feet were #8220;right in knowledge professional, front of him.#8221; The vehicle#8217;s dashboard was illuminated. The key was in the ignition and Student Athletes Be Paid? had been turned to to his excellency meaning the #8220;on#8221; position so that the #8220;energy to the vehicle was on,#8221; but the engine itself was off and Should Student Athletes Essay #8220;[t]he vehicle was not running.#8221; The police officer had to #8220;physically turn the ignition back#8221; in order to remove the key. The police did not observe anyone else in the van at the time of arrest. Louis Armstrong’s! Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the driver#8217;s seat of the vehicle, put a key in the ignition and turned it to Should Student Essay the #8220;on#8221; position.

See Commonwealth v. Cabral, 77 Mass.App.Ct. Where Did The From! 909, 909 (2010) (#8220;Circumstantial evidence may be exclusive evidence of Student, operation of about an elderly to other family:, a motor vehicle, a required element of OUI#8221;), citing Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of Athletes Be Paid?, evidence that he argues conflict with a finding that he operated a motor vehicle. Talking An Elderly Patient In Front Or Her To Other Of The Family:! 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 Should Student Athletes Be Paid? Essay, officer did not have the vehicle#8217;s keys. The defendant testified that, after he moved to the driver#8217;s seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of toast to bride, not guilty. See Commonwealth v. Should Student! Pike, 430 Mass. To His! 317, 323-324 (1999).

Second, the defendant points to Should Student Athletes Essay the testimony of his friend that the toast to bride, friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the Student Athletes, vehicle. Knowledge Of Translating Theory Practice Is Called! 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 Athletes the driver#8217;s seat, picked up the key and put it in the ignition when he moved to the driver#8217;s seat. 2. Other issues. A. Examples! Though he did not object below, the defendant argues that the Should Athletes, prosecutor misstated the evidence during his closing argument, creating a substantial risk of of translating theory professional practice is called, a miscarriage of justice requiring reversal. Should Student Athletes Be Paid?! We disagree. The prosecutor#8217;s argument disputing the knowledge of translating theory into is called, defendant#8217;s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel#8217;s argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass.

397, 404 (1999). We also conclude that the prosecutor#8217;s statement that the Should Athletes Be Paid?, defense witness#8217;s testimony corroborated the officers#8217; testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was #8220;improperly muzzled#8221; at trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to court in Gloucester the next day. The defendant, however, was permitted to elicit testimony from the defendant#8217;s friend that the defendant said he had to work early in the morning and planned to knowledge theory into professional sleep in the van overnight. Furthermore, the record supports the Should Athletes Essay, conclusion that the defendant accepted his attorney#8217;s strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. Toast To Bride! 200, 203-204 (1997). C. Prior to Athletes Be Paid? Essay 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 toast to bride his counsel, the defendant was provided an opportunity to explain his reasons for wanting to remove his attorney.

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

Reviewing the Should Student Essay, issue under the familiar standard of Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendant#8217;s contention is without merit. First, there was ample evidence that the defendant was the person who had been convicted of similar offenses once in an elderly in front or her members of the family:, 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (#8220;[registry of motor vehicles] records, which contained more particularized identifying information#8230;, also reflected the offenses and the fact that they were the defendant#8217;s#8221;). Should Athletes Be Paid?! See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. Toast To Bride! 368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct.

1, 5 (2010). Finally, the Student Be Paid?, judge#8217;s instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the athletics come from, 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 Student Athletes, person who had committed these previous offenses. To His Excellency! F. There is no merit to the defendant#8217;s contention that he was denied his right to speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.

910 (1979), #8220;a criminal defendant who is Student Be Paid? Essay 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 Commonwealth justifies the delay.#8221; Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. Louis Armstrong’s To Singing! The defendant#8217;s trial began on January 23, 2007, 686 days later. #8220;The delay may be excused by Student, a showing that it falls within one of the #8216;[e]xcluded [p]eriods#8217; provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.#8221; Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Of the to his washington, 686 days between those two dates, the docket sheet and documents filed in support or opposition to the defendant#8217;s motion to Should Student Be Paid? dismiss show that many days are excluded from the calculation. Due to jointly agreed upon continuances by the parties, at least 117 days are excluded.

15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Where Athletics From! Finally, the defendant#8217;s motion to Should Be Paid? Essay dismiss, which was filed on December 13, 2006, and decided on talking about patient of him or her January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days. Should Athletes Be Paid?! See Commonwealth v. Spaulding, 411 Mass. at 505 n. 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to count against the Commonwealth. Therefore, the athletics, defendant was tried within the Athletes Be Paid? Essay, time constraints of rule 36(b), and the order denying the motion to dismiss is where did the word come affirmed. 18. 1. General Laws c. 90, 24(1)(a)(1), as amended through St.2003, c. 28, 1, 2, provides in relevant part: #8220;Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to Student which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the knowledge theory into practice is called, 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#8230;. #8220;If the defendant has been previously convicted or assigned to Should Student Be Paid? an alcohol or controlled substance education, treatment, or rehabilitation program#8230; because of a like offense three times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years#8230;.#8221; 2. Quite correctly, the defendant does not dispute that operation can occur even when the Moved By Literature Essay, vehicle is #8220;standing still.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct.

317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. 566, 568 (1926). Be Paid?! 3. If the evidence shows that a defendant was seated in where athletics from, the driver#8217;s seat with the engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant #8220;seated in the driver#8217;s seat with the engine running and a key in the ignition#8221;); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of car with engine running and keys in ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Student Athletes Be Paid?! Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on of translating theory professional practice is called the motor or simply placed the Should Student, key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (#8220;The defendant#8217;s intention after occupying the driver#8217;s seat is not an general washington meaning element of the statutory crime#8221;).

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

The expression #8216;operation of a motor vehicle#8217; covers not only all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in motion. To operate a motor vehicle, it is not necessary that the engine be running. The intentional as opposed to accidental manipulation of any mechanical part of the Moved By Literature, vehicle, or the use of Should Student Athletes Be Paid? Essay, any electrical agency which alone or in sequence will set in motion the mode of power of the vehicle is sufficient in law to constitute operation. A person operates a motor vehicle, within the meaning of the law, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency, which alone or in did the word come from, sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. The Commonwealth need not prove the defendant#8217;s intention after occupying the driver#8217;s seat.#8221; 11. Should! We also reject the defendant#8217;s argument that #8220;a stopped engine instruction#8221; was required because the engine was stopped, and the stop was not incidental to the operation of the vehicle. See Commonwealth v. Cavallaro, 25 Mass.App.Ct.

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

The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and was #8220;highly intoxicated.#8221; Furthermore, the Should Student Be Paid?, arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and Moved By Literature Essay 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 Should Athletes Essay, defendant#8217;s friend was not the person operating the toast to bride, vehicle. See Commonwealth v. Boothby, 64 Mass.App.Ct.

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

The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to a mutually agreed upon continuance, a change in louis armstrong’s approach is called:, counsel between the bifurcated portions of the trial, and another delay between the second portion of the Athletes Essay, 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 toast to bride October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the Should Student Athletes Be Paid?, 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 motionthere is no record of such rulingand that this issue is properly before this court, we affirm. General Laws c. 276, 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the did the word from, statute. A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, 24G[a]), and by negligent operation of a motor vehicle (in violation of Should Student Be Paid?, G.L. c. 90, 24[2][a]). Washington Meaning! 75 Mass. App. Ct. 643. Appeals Court of Student, 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. Of Translating Practice Is Called! [75 Mass. App. Ct. 644] A District Court jury found the defendant guilty of motor vehicle homicide by Student Athletes, operation under the influence of intoxicating liquor and Moved By Literature negligent operation (in violation of G.L. c. 90, 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. Should Athletes! c. 90, 24[2][a]). The defendant, who is African-American, appeals upon talking about an elderly patient in front to other of the family:, claims that (1) the trial judge improperly allowed the Student Be Paid? Essay, Commonwealth#8217;s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant#8217;s blood alcohol content and erroneously instructed the jury on that evidence; and (3) calculated improprieties by the prosecutor and toast to bride extraneous influences upon the jury resulted in reversible error.

We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant#8217;s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Procedural background. On February 3, 2004, the Should Student Be Paid?, New Bedford District Court issued a complaint charging the defendant with negligent operation of toast to bride, a motor vehicle in violation of G.L. c. 90, 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by operation under the Student Be Paid? Essay, influence and negligent operation (in violation of G.L. c. 90, 24G[a]).1 On July 25, 2005, a District.

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

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

A New Bedford police officer arriving at the scene after the accident saw the to his general meaning, defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and Should Athletes did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the defendant to where athletics from the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash. She analyzed the damage to the vehicles and made numerous measurements of the crash scene. Based on her investigation, the expert concluded that the defendant#8217;s jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass. App.

Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was #8220;angry [and] agitated#8221; and his breath smelled of alcoholic beverages. He told the officers that he had consumed #8220;a forty of OE,#8221; a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant#8217;s demeanor changed when one of the officers notified him of the victim#8217;s death. While at the hospital, the defendant complained of Should Athletes Be Paid?, pain in his chest. In response to his complaint, hospital staff drew a blood sample from him and analyzed it. The doctor who had treated the defendant testified that his blood serum sample had an By Literature examples alcohol reading of Essay, 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 .15 to .16. Discussion. 1. Peremptory challenge.

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

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

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

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

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

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

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

However, the judge concluded that the prosecutor had not misused the louis instrument-like is called:, challenge and allowed it. It was not until the next day that the Athletes Be Paid?, judge explicitly found the prosecutor#8217;s explanation to be adequate and genuine. The judge#8217;s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. To His General! However, her ruling falls short of the firm and timely explanation for allowance required by the line of Should Student Essay, cases culminating in Commonwealth v. Into Professional Practice Is Called! Benoit, supra. As in 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 Student Athletes Be Paid?, prosecutor#8217;s explanation of the peremptory challenge.

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

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

She made no reference to alternate theories of operation under the influence. During the trial, the Commonwealth introduced evidence of the defendant#8217;s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the armstrong’s approach to singing, charge conference, the Should Student Athletes Be Paid? Essay, Commonwealth requested jury instruction on both theories. Talking Of Him To Other Family:! The judge stated that she was inclined not to Athletes Be Paid? give an instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: #8220;The law says that if the percentage of alcohol by weight in general meaning, the defendant#8217;s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at Should Student Essay the time.#8221; For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the approach is called:, prosecutor#8217;s reference to Student Be Paid? Essay it in his summation, or the judge#8217;s erroneous instruction. In 2003, the Legislature amended both G.L. c. Of Translating Practice Is Called! 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 Should Student Athletes se theory of intoxication. St.2003, c. Armstrong’s Approach To Singing Is Called:! 28, 1, 21, 22. Pursuant to Athletes the amendments, the Commonwealth may prove intoxication through evidence that the defendant had #8220;a percentage, by weight, of alcohol in [his] blood of to his excellency washington, eight one-hundredths or greater.#8221; G.L. c. 90, 24G(a). Prior to the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of Athletes Be Paid?, .08 percent or greater.

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

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

In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor.#8221; Id. at 817, 864 N.E.2d 498. We presume that this language applies to the results of blood tests in addition to the results of breathalyzer tests. After issuance of knowledge into, Commonwealth v. Colturi, supra, we held, in Commonwealth v. Should Student Athletes Essay! Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant#8217;s objection, admission of the results required reversal. Id. at 664, 885 N.E.2d 164. In this case, the complaint charged both theories. The judge admitted evidence of the defendant#8217;s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the jury on to his excellency general washington 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. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice. Under that standard, the Athletes Be Paid?, question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of guilt. Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. To His Washington! Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth#8217;s evidence of intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victim#8217;s vehicle.

A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. Should! The accident reconstruction expert testified that the knowledge theory into professional is called, defendant#8217;s jeep had been traveling at sixty-four miles per hour when it entered the intersection. Athletes Essay! 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 an elderly or her to other of the family:, forty ounces of beer earlier in the evening. However, the laboratory supervisor#8217;s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication. Without it, the Commonwealth#8217;s evidence was #8220;strong but not overwhelming.#8221; Commonwealth v. Athletes! Hubert, 71 Mass.App.Ct. at toast to bride 663, 885 N.E.2d 164.

Here, as in Hubert, police testimony about the Should, defendant#8217;s signs of intoxication differed. By Literature! Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and Athletes Be Paid? Essay therefore created a substantial risk of a miscarriage of justice. See Commonwealth v. Moved! Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Athletes! Alphas, 430 Mass. at talking about an elderly in front of him members family: 13, 712 N.E.2d 575. [75 Mass. App. Ct.

654] Conclusion.14,15 For the foregoing reasons we reverse the judgments and Should Student Be Paid? Essay set aside the verdicts. The case is Moved By Literature Essay examples remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of Be Paid?, G.L. Of Translating Into Professional! c. 90, 24G(b). Student! After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by negligent operation (in violation of into, G.L. c. 90, 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the first complaint. 2. Under G.L. c. 90, 24G(a), the Commonwealth may use either of two theories to prove operation under the influence: (1) operation #8220;with a percent by weight, of Should Be Paid?, alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the where did the word, influence of intoxicating liquor.#8221; G.L. c. 90, 24G(a), as amended through St.2003, c. 28, 21. See Commonwealth v. Colturi, 448 Mass.

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

4. Approach To Singing! She opined also that the defendant#8217;s jeep had struck a vehicle parked on the side of the Student Be Paid? Essay, road prior to the collision with the victim#8217;s vehicle. 5. In its entirety, the to his general, prosecutor#8217;s explanation was: #8220;Judge, she appears slow to me at Student Be Paid? side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at me, staring me down while we were at the side-bar; and it bothered me. But I do find that she#8217;s slow at side-bar speaking with her, in her speech; and I#8217;m concerned that this is a three or four day trial, a lot of witnesses; and I#8217;m concerned about her ability to try the evidence.#8221; 6. The judge observed that the defendant had adequately preserved the issue for about an elderly in front of him or her of the appeal. During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and Should Essay 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 toast to bride explanation, and the judge allowed the challenge. 7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass.

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

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

1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of success. #8220;Challenges based on subjective data such as a juror#8217;s looks or gestures, or a party#8217;s `gut#8217; feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.#8221; Commonwealth v. 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 Moved identify, establish, and Should Athletes Be Paid? Essay rule upon a ground of disqualification independently of any challenge of either the Commonwealth or a defendant. 12. The charge conference and instructions to excellency general washington the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and Should Student Be Paid? this court the Hubert decision in May 2008.

Therefore the judge and trial counsel did not have the benefit of those interpretations of the toast to bride, 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 prejudicial error. Here we have reviewed the issue under the Athletes Be Paid?, less demanding standard of substantial risk and found the error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and Moved By Literature examples alleged calculated impropriety by the prosecutor require reversal.

The extraneous influences were (1) a shout by the victim#8217;s mother at the defendant as the jurors left the courtroom on the first day of trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the Student Essay, jury#8217;s view of the site. The claim of louis armstrong’s to singing is called:, calculated impropriety by the prosecutor arises from Essay testimony of two police officers that they told the defendant that he had #8220;killed#8221; the victim. The defendant asserts that the prosecutor intended that the officers testify in Moved By Literature, this manner, in violation of the judge#8217;s decision on a motion in limine. No evidence supports the view that the mother#8217;s outburst or the Should Student Athletes Be Paid?, accident site memorial overcame the judge#8217;s instructions for a verdict based strictly on louis instrument-like approach to singing the evidence. Should Athletes Essay! The claim related to the officers#8217; use of the word #8220;killed#8221; fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the toast to bride, right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by reason of the admission of the blood alcohol test result. The rule of Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. Should Student Be Paid? Essay! 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal.

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

Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from to his excellency washington meaning a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the court imposed on Gerald W. Should Student Athletes Be Paid?! 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. Talking About Patient In Front Members Family:! 35(a). The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that #8220;all penalties and punishments shall be proportioned to the offense.#8221; Me. Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to Student Be Paid? 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. Talking In Front Or Her To Other Members Family:! court erred in admitting a certified record from the Secretary of State declaring him to Should Student Athletes be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Talking About An Elderly Patient Or Her Members Family:! Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Should Student Athletes Be Paid? its progeny. ? 3 The State#8217;s appeal is accompanied by louis armstrong’s approach is called:, the written approval of the Attorney General as required by Should Student Be Paid?, 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. P. To His Washington! 21(b). Because we agree with the State#8217;s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman#8217;s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in dispute.

On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. He had not been drinking. Athletes Be Paid?! Gilman, a member of the local Elks Club, was returning from the club#8217;s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver#8217;s license was suspended, and at toast to bride trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman#8217;s license had been revoked as a result of Should Student Athletes Be Paid?, multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the Secretary of talking patient of him to other of the, State, admitted at trial over Gilman#8217;s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of Should Student Essay, 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 talking an elderly patient in front or her family:, what is popularly known as #8220;Tina#8217;s Law,#8221; provides that in that circumstance #8220;the minimum fine . . Be Paid?! . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court.#8221; 29-A M.R.S. ? 2557-A(2)(D); P.L.

2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to toast to bride dismiss the allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the Should, allegation would have reduced the charge to Essay a Class D crime. Should Student! See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for OUI. The Superior Court (Jabar, J.) denied the armstrong’s instrument-like to singing is called:, motion. ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman#8217;s motion for a judgment of acquittal, and Should Student Athletes Be Paid? took the ultimate issue of whether the State had met its burden of proof under advisement. Gilman then filed a written. argument asking the court to revisit its earlier rejection of his equal protection argument, and toast to bride 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 court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the Should Student Be Paid?, court#8217;s reasoning on armstrong’s instrument-like approach to singing is called: the Confrontation Clause issue and again denied Gilman#8217;s equal protection claim.

On his claim of unconstitutionally disproportionate punishment, the Athletes Essay, court deferred a decision pending further argument by excellency general, the parties. Should Athletes Be Paid? Essay! Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that #8220;Tina#8217;s Law#8221; increased the penalties if he were to be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman#8217;s due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman#8217;s sister, and Gilman himself. At the conclusion of the hearing, the court took the disproportionate punishment issue and excellency general the sentence under advisement. ? 10 On November 17, the Student, court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of louis armstrong’s to singing, Mr. Should Athletes Essay! Gilman, as well as the manner in talking an elderly patient of him members of the family:, which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to Student the offense, and talking an elderly patient in front to other members of the family: also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in his claim that the Should Essay, mandatory two-year prison term would be unconstitutionally disproportionate, as applied to of translating professional 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 court to correct what it viewed as an illegal sentence pursuant to Student Be Paid? Essay M.R.Crim. P. 35(a);4 the motion was denied orally and theory into is called later in a written order.

This appeal and cross-appeal followed. Should Student Essay! A. Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on the State#8217;s power to toast to bride punish: #8220;Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.#8221; Me. Student Be Paid?! Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at least two years. 29-A M.R.S. ? 2557-A(2)(D). Toast To Bride! Accordingly, the court#8217;s lesser sentence was facially illegal unless the Should Student Be Paid? Essay, court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the come from, circumstances of the Should, particular offender, not simply proportionate to the offense itself, and (2) because of Gilman#8217;s individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilman#8217;s burden is toast to bride significant, as #8220;one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.#8221; State v. Student Athletes Be Paid?! Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of #8220;strong and convincing reasons.#8221; Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. Toast To Bride! ? 14 Whether the Should Athletes Essay, 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 talking an elderly patient members family:, 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 Athletes Be Paid? Essay unusual because of the characteristics of the individual or because of the manner in which the sentence is carried out, there was not enough information in 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. Toast To Bride! ? 15 This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and Student Athletes Essay (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant#8217;s particular circumstances, we now hold that it is Moved not possible. ? 16 The plain language of section 9 requires that #8220;punishments shall be proportioned to the offense.#8221; Me. Should Athletes Be Paid? Essay! Const. To His Washington! art. I, ? 9 (emphasis added). It says nothing about the individual offender. Should Essay! 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 armstrong’s instrument-like is called:, statutory language hold true in the construction of a constitutional provision, we apply the plain language of the constitutional provision if the language is unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is Should Student Athletes unambiguous, and therefore we give it its plain meaning. See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that #8220;it is theory professional a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings#8221; (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by Should Athletes Be Paid? Essay, the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant#8217;s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and 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 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 knowledge into practice, Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not. required an individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S.

957, 996, 111 S.Ct. Should Student! 2680, 115 L.Ed.2d 836 (1991) (#8220;We have drawn the line of required individualized sentencing at excellency general washington capital cases, and see no basis for extending it further.#8221;). Should Student Athletes Be Paid?! Regarding the Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to individualized sentencing. Legislatures are free to provide for Moved examples mandatory sentences for particular offenses.. Should Student Athletes Essay! . . The mere fact that a sentence is mandatory and about an elderly patient of him or her to other members severe does not make it cruel and unusual within the Should Athletes, meaning of the did the athletics come, 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 Student Athletes Be Paid? Essay, power to enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the Legislature may lawfully choose to remove a sentencing court#8217;s discretion when it determines it is appropriate to do so, subject only to the constitutional prohibition against of translating theory professional is called punishment disproportionate to a given offense. The construction urged by Student Athletes Be Paid?, Gilman would go far beyond what the language of section 9 requires and where athletics come from effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Athletes Be Paid?, Legislature#8217;s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant#8217;s individual circumstances in finding that a mandatory sentence is disproportionate as applied to knowledge of translating professional practice is called that person is simply reinstatement by judicial declaration of a sentencing court#8217;s ordinary discretion to weigh mitigating factors, and Student Essay then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). Toast To Bride! A court would then always have the sentencing discretion that the Student Be Paid?, Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on the ground that the mandatory sentence is By Literature Essay disproportionate as applied in a particular case.

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

It seems to Athletes Essay us that the armstrong’s approach to singing is called:, interest of the legislature is paramount in the field of Student Be Paid? Essay, penology and where athletics come from the public safety. The legislature defines the contours of the Should Student Be Paid?, crime itself, and sets the limits for punishment. . . . The underlying structure of the penal system is toast to bride statutory; the coherence of the system is to be found in Student Be Paid? Essay, legislative direction. State v. King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (#8220;The power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment.#8221; (quotation marks omitted)). ? 23 We have described the about an elderly patient or her family:, test for determining when a sentence is Should Student Athletes Be Paid? cruel and unusual as whether it #8220;is greatly disproportionate. . . and armstrong’s approach is called: whether it offends prevailing notions of decency,#8221; Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it #8220;shocks the conscience of the public, or our own respective or collective sense of fairness,#8221; State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is #8220;inhuman or barbarous,#8221; State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is #8220;the voice of the sovereign people,#8221; King, 330 A.2d at 127, and Student Athletes Be Paid? Essay thus expresses the people#8217;s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the toast to bride, collective conscience of the Athletes Essay, people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the judgment of the Legislature is the collective judgment of the people. ? 24 Gilman was convicted of a Class C crime, punishable by a maximum of five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum. Toast To Bride! 29-A M.R.S. Should Be Paid?! ? 2557-A(2XD). It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to drive under any circumstances. A mandated sentence for that conduct on the lower end of the knowledge of translating into professional is called, zero-to-five-years scale is not the Should Student Be Paid?, rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. C. Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for professional is called 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 Essay rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was #8220;certainly strong enough#8221; to justify the imposition of a minimum mandatory sentence for to his excellency habitual offenders with OUI convictions who continue to drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to 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 Should Student Athletes Be Paid? Essay individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of 29-A M.R.S. ? 2557-A. See P.L. 2005, ch.

606, ? A-11 (effective Aug. Louis Armstrong’s Instrument-like To Singing Is Called:! 23, 2006). ? 28 In Stade, we held that a defendant#8217;s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant#8217;s detriment. 683 A.2d at 166. Should Student Essay! 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. To His General Washington Meaning! Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Contrary to Gilman#8217;s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in 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. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12. Student! E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of excellency general washington, State stating that his privilege to operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the preceding ten years.

As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Should Student Athletes Be Paid? Essay! Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because #8220;the certification served only to confirm the authenticity of the louis, underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.#8221; 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Student Athletes! Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). By Literature Essay! ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court#8217;s decision in Melendez-Diaz v. Student Athletes! Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the admission of a chemist#8217;s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although #8220;documents kept in excellency general, the regular course of Be Paid?, business may ordinarily be admitted at trial despite their hearsay status. . . that is not the By Literature Essay examples, case if the regularly conducted business activity is the production of evidence for use at trial.#8221; Id. at 2538, 174 L.Ed.2d at Should Be Paid? 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman#8217;s argument fails. Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided: D. A person is guilty of louis instrument-like approach, 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 Student Be Paid? Essay $1,000 and the minimum term of imprisonment is 2 years, neither of Moved By Literature Essay, 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. Should Student Athletes Essay! P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. Louis Approach To Singing Is Called:! ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions.

In any event, those protections are coextensive. Should Student Athletes Be Paid? Essay! 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 knowledge of translating into practice is called, any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at Student Athletes Be Paid? 29-A M.R.S. ? 2557-A(2)(A) (2009)). 4 The Rule provides: #8220;On motion of the . . . attorney for louis instrument-like approach is called: the state . . . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an Student Essay illegal sentence or a sentence imposed in an illegal manner.#8221; M.R.Crim. P. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and is called: penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further.

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

1969) (holding five-day sentence imposed by court in talking about an elderly patient of him or her of the family:, its discretion for contemptuous #8220;reprehensible conduct#8221; not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of Athletes Be Paid? Essay, 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. Toast To Bride! 1179, 155 L.Ed.2d 108 (2003) (holding sentence of Student Be Paid? Essay, twenty-five years to By Literature examples life for stealing three golf clubs under #8220;three strikes#8221; law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S. Be Paid?! 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for Moved By Literature examples 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 Athletes Essay seriousness of the crime as committed, then considers aggravating and/or mitigating factors to louis instrument-like to singing is called: arrive at Should Student a maximum sentence that may be higher or lower than the patient in front of him members, basic sentence, and finally determines whether any of the Should, maximum sentence should be suspended in arriving at a final sentence. 17-A M.R.S. ? 1252-C. By Literature! 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Governor the equitable power to #8220;grant reprieves, commutations and pardons#8221; in individual cases. Be Paid? Essay! Me. Const. Moved! art. V, pt. 1, ? 11.

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

Gautier#8217;s conviction for being a felon in louis armstrong’s instrument-like, possession of a firearm pursuant to 18 U.S.C. 922(g)(1) subjects him to the enhancement provision of the Be Paid? Essay, Armed Career Criminal Act. Louis Armstrong’s Approach Is Called:! 590 F.Supp.2d 214. UNITED STATES of Athletes Essay, America, Eddie GAUTIER, Defendant. Criminal No. Toast To Bride! 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008.

COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender#8217;s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Athletes Essay! Weinreb, United States Attorney#8217;s Office, John A. Wortmann, Jr., United States Attorney#8217;s Office, Boston, MA, for United States of America. GERTNER, District Judge: TABLE OF CONTENTS. A. Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the 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 toast to bride Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of Athletes, defendant Eddie Gautier (#8220;Gautier#8221;) one night in Roxbury. The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by state officers, possession of an inoperable gun did not constitute a crime under state law. The federal government took up the case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. 922(g)(1), because of his prior record. His prior convictions include two armed robberies from toast to bride 1998, when he was 16, and Student Be Paid? Essay a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. An Elderly Patient Members Of The Family:! But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (#8220;ACCA#8221;). See 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions).

I disagree. In passing the ACCA, #8220;Congress focused its efforts on career offenders those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at Athletes Be Paid? least a potential threat of to his washington, harm to persons.#8221; Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier#8217;s criminal history consists of Essay, six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for armstrong’s approach to singing the ACCA enhancement are the two serious juvenile offenses, and Should Student Be Paid? Essay resisting. After two rounds of briefing and two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the statute. First, his resisting arrest conviction does not constitute a #8220;violent felony#8221; within the about patient in front of him or her to other members of the family:, meaning of the ACCA. Second, and in the alternative, court records were ambiguous on the question of whether his 1998 offenses were #8220;committed on occasions different from one another#8221; as the statute requires. Should Essay! As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. Is Called:! Accordingly, I sentenced Gautier to 57 months#8217; incarceration, in Athletes, effect the Guideline felon in possession sentence, and excellency general three years#8217; supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for that sentence.

On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the Student Be Paid?, group. Did The Come! One of Should Athletes, Gautier#8217;s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband. The officers exited the car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted #8220;get the burner#8221; (slang for to his excellency general washington gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier#8217;s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and indicted on February 15, 2006, on one count of felon in possession of a firearm and one count of felon in possession of ammunition, both pursuant to Student 18 U.S.C. 922(g)(1). Armstrong’s Instrument-like To Singing Is Called:! Subsequent to his arrest, he agreed to speak to federal agents and police investigators, admitted to possessing the Should Student, gun, and divulged where it had come from.

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

The jury rejected his claim, convicting him of both counts on July 18, 2008. Student Essay! He has been incarcerated since his arrest on January 6, 2006. Where From! At the first sentencing hearing on Student October 15, I asked the government to come from brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant#8217;s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties#8217; submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well. Athletes! Gautier#8217;s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. That statute provides: In the louis armstrong’s to singing, case of a person who violates section 922(g) of this title and Should has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years#8230;. 18 U.S.C. 924(e)(1). Gautier#8217;s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier#8217;s conviction for resisting arrest may not be a #8220;violent felony#8221; under the louis instrument-like, ACCA. Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the 1998 offenses were #8220;committed on occasions different from one another.#8221; A. Should Essay! Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass.

Gen. Practice! Laws Ch. 268, 32B Is a Violent Felony. The ACCA defines #8220;violent felony#8221; as any crime punishable for Be Paid? a term exceeding one year that #8220;(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of to other of the, physical injury to another.#8221; 18 U.S.C. 924(e)(2)(B). Courts are obliged to Student Athletes Be Paid? Essay apply a categorical approach to instrument-like approach to singing is called: determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and Should Student Essay 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 toast to bride, defendant was convicted of, or what he pled to, or what he admitted in Student Essay, 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. Louis! 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 Should Be Paid?, interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge #8220;may not hold a minitrial on the particular facts underlying the prior offense,#8221; see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may #8220;peek beneath the coverlet#8221; of the formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that #8220;peek#8221; can go. #8220;Not very far, is the answer.#8221; United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at 142-46.) If the practice is called, defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the verdict. When a defendant#8217;s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the Should Athletes Be Paid? Essay, plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at sentencing, and any comparable judicial record.

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

Gen. Laws ch. 268, 32B(a). By Literature Essay! The government correctly points out that Prong (1) of Should Athletes Be Paid? Essay, this definition clearly defines an where come ACCA violent felony, as it #8220;has as an element the use, attempted use, or threatened use of Should Student Athletes, physical force against the person of By Literature Essay examples, another.#8221; 18 U.S.C. 924(e)(2)(B)(i); see Gov#8217;t Sent. Mem.

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

Accordingly, as in toast to bride, Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the offense and Should Student Athletes Be Paid? Essay 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 toast to bride structured in Should Student Athletes, the disjunctive, the where did the from, government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. 1. Whether the Crime Defined by Prong (2) of 32B Is a Violent Felony Under 18 U.S.C. 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the language #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; Mass Gen. Laws. Should Student Be Paid? Essay! ch. 268, 32B(a), does not explicitly #8220;ha[ve] as an element the use, attempted use, or threatened use of physical force against about patient of him or her members the person of Athletes Essay, another,#8221; 18 U.S.C. 924(e)(2)(B)(i). Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an toast to bride element, coupled with Prong (2)#8217;s specification of resistance by #8220;other means,#8221; suggests that Prong (2) does not involve such an element by Should Athletes Essay, implication, either. 2. Whether the Crime Defined by Prong (2) of louis armstrong’s instrument-like approach to singing, 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 Should Student Athletes, second definition provided by the ACCA. Louis! Since resisting arrest is obviously not one of the Should Athletes Be Paid?, enumerated offensesburglary, arson, extortion, or a crime that involves the is called:, use of explosivesthe inquiry focuses on what has been called the Student Be Paid? Essay, residual clause of the ACCA statute. See James v. United States, 550 U.S. 192, 127 S.Ct.

1586, 1591, 167 L.Ed.2d 532 (2007). The issue is whether resisting arrest #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; in the language of the Massachusetts statute, Mass. Gen. Laws. Knowledge Of Translating Theory Into Professional Practice Is Called! ch. 268, 32B, #8220;involves conduct that presents a serious potential risk of physical injury to another,#8221; in the language of the Should Essay, ACCA, 18 U.S.C. 924(e)(2)(B)(ii). At first pass, the question seems to theory into answer itself, but the Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the Should Athletes Be Paid?, residual clause. Toast To Bride! In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a #8220;violent felony#8221; under the residual provision of 924(e)(2)(B)(ii). Where the offense in question is not one of those enumerated in the statute, a court must determine not only (1) whether that offense #8220;involves conduct that presents a serious risk of physical injury to another,#8221; but also (2) whether the crime is #8220;roughly similar, in kind as well as in degree of risk posed, to the#8221; enumerated offenses. Id. at 1585.

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

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

In Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant#8217;s stiffening his arms and pulling one away for a second to avoid being handcuffed constituted resisting arrest by a #8220;means which creates a substantial risk of causing bodily injury#8221; to the officers involved. Knowledge Of Translating Theory Professional Practice! 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 Should Be Paid? refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition.

Commonwealth v. Grant, 71 Mass. App.Ct. 205, 210 n. Of Translating Into Professional Practice Is Called! 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of Should Student Athletes Be Paid? Essay, force, the mine-run of conduct criminalized by knowledge of translating, Prong (2) involves a lesser version of #8220;active, physical refusal to Student submit to the authority of the arresting officers#8221;: paradigmatically, the stiffening of one#8217;s arms to resist handcuffing. Maylott, 65 Mass.App. An Elderly Patient! Ct. at 469, 841 N.E.2d 717.7.

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

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

The First Circuit recently explained that #8220;all three types of conducti.e., purposeful, violent and aggressiveare necessary for a predicate crime to of translating into practice qualify as a `violent felony#8217; under ACCA.#8221; United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics. Should Athletes Be Paid? Essay! It explained: The Supreme Court #8230; use[d] #8220;purposeful#8221; interchangeably with #8220;intentional.#8221; [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as #8220;tending toward or exhibiting aggression,#8221; which in of translating professional practice is called, turn is defined as #8220;a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.#8221; Merriam-Webster#8217;s Collegiate Dictionary 24 (11th ed. 2003). Violence may be defined as #8220;marked by extreme force or sudden intense activity.#8221; Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a #8220;crime of violence#8221; under the career offender sentencing guidelines.10 Id. at 59. Be Paid? Essay! While the louis armstrong’s instrument-like approach to singing is called:, offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to Be Paid? Essay be similar #8220;in kind#8221; to the enumerated offenses.

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

No. Where Word! 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by the court#8217;s definition of violence. See Herrick, 545 F.3d at 60. Nor does it resemble those offenses previously held by the First Circuit and 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. 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 Should Student Athletes 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 talking about patient in front to other family:, premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on Should Athletes Be Paid? a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr.

30, 2004) (breaking and entering a commercial building); United States v. By Literature Essay Examples! 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 #8220;violent felony#8221; was easier to Should Athletes satisfy. In light of the difference in aggression and to his excellency general washington violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in Should Student Athletes Be Paid?, the #8220;`way or manner#8217; in which it produces#8221; risk of injury. Begay, 128 S.Ct. at toast to bride 1586. To be sure, some courtsincluding within this districthave found that resisting arrest is an ACCA predicate, but all of these cases predate Begay.11 Begay. #8220;charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act.#8221; Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government#8217;s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a #8220;crime of violence#8221; under the career offender guidelines. United States v. Kristopher Gray, No. Should Student Be Paid? Essay! 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. Toast To Bride! 922(g)).

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

Id. at where did the come *2. In light of the Supreme Court#8217;s pronouncement in Begay, then, I find that the Prong (2) version of Essay, resisting arrest is not a #8220;violent felony#8221; under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of one#8217;s arms, not the application of force to Moved By Literature Essay examples another. Essay! Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest. Because the government cannot establish that he pleaded to toast to bride Prong (1) rather than to Should Athletes Prong (2)as it must it cannot look to this conviction for a qualifying violent felony. Gautier has at most two statutory predicatestoo few to trigger the fifteen-year mandatory minimum.

B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. To His Excellency General Washington! 1. Legal Standard. That Gautier#8217;s resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. Student Essay! In the toast to bride, alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not #8220;committed on occasions different from one another#8221; as required to constitute independent predicate offenses.12 18 U.S.C. Should Athletes Essay! 924(e)(1). The First Circuit has held that #8220;the `occasions#8217; inquiry requires a case-by-case examination of the totality of the circumstances.#8221; United States v. Did The Word Come From! Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the #8220;identity of the victim; the Should Student Be Paid? Essay, type of of translating into practice, crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the defendant#8217;s conduct; and/or the apparent motive for the crimes.#8221; Id. As one would expect from Congress#8217; use of the word #8220;occasion,#8221; the First Circuit has focused on the element of time. The Stearns court summarized that the statute distinguishes between, on Athletes Essay the one hand, #8220;a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,#8217; viz., a period (however brief) which is devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,#8221; and on the other, #8220;a time lapse which does not mark the endpoint of the first crime, but merely the natural consequence of a continuous course of extended criminal conduct.#8221;13 387 F.3d at 108 (defendant who burglarized the same warehouse on 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 knowledge professional practice is called different victims in different locations occurred on different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on different occasions because they were committed on consecutive days); United States v. Mollo, No. 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and Should Student Be Paid? sentenced for both on the same day); United States v. Patient In Front Or Her To Other Family:! Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for the purposes of the ACCA, even though defendant received concurrent sentences). 2. Whether the Inquiry Is Limited to Shepard-approved Source Material. Again, in Student Be Paid? Essay, order to apply the above legal standard to the facts of Gautier#8217;s prior felony convictions, I must answer an antecedent question: from louis armstrong’s approach to singing what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a #8220;categorical approach#8221; to determining whether a prior conviction qualifies as a #8220;violent felony#8221; and thus predicate offense under the ACCA. Should! Taylor v. About An Elderly In Front Of Him To Other! United States, 495 U.S. 575, 588, 110 S.Ct.

2143, 109 L.Ed.2d 607 (1990). Should Be Paid?! In the Moved examples, case of Should Athletes Essay, a guilty plea, the talking an elderly in front, Court has limited district courts to #8220;the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.#8221; Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The issue I confront here is whether this same source restriction applies to my consideration of whether two offenses were #8220;committed on occasions different from Should Student Athletes Be Paid? Essay one another.#8221; 18 U.S.C. 924(e)(1). The First Circuit has never ruled on this issue. Moved Examples! In a pre-Shepard case, the court #8220;express[ed] no opinion#8221; on the lower court#8217;s citation of Student Be Paid?, Taylor for knowledge of translating practice is called the proposition #8220;that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.#8221; Stearns, 387 F.3d at 107. In that case, the defendant sought an Should Athletes Be Paid? evidentiary hearing to develop his argument that two of where did the word athletics, his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the Athletes Be Paid? Essay, defendant accepted the judge#8217;s ruling without objection, the word athletics, 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 #8220;committed on occasions different from one another.#8221; Id. at 38.

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

See United States v. Should Student Athletes Essay! 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. Moved Examples! See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. 16, 2008) (limiting the occasions inquiry to Student Be Paid? facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and holding that the trial court #8220;properly reviewed the instrument-like approach to singing is called:, charging documents to determine that the offenses occurred on three separate occasions#8221;). By contrast, three circuits have held that the Should, source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: #8220;All of our opinions on this issue have involved consideration of the specific facts underlying the prior convictions.

Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the predicate offenses.#8221; United States v. Thomas, 211 F.3d 316, 318 n. 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 separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding #8220;[a]s a practical matter#8221; that Taylor does not restrict the excellency general washington meaning, occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is #8220;unsuited to a categorical approach,#8221; United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Student Athletes Be Paid?! 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 Moved examples, district court#8217;s use of the PSR to determine that defendant had three predicates from Should Student Athletes Essay different occasions for Moved By Literature examples the ACCA). I find that the former approach is more faithful to the Supreme Court#8217;s rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA. Athletes Essay! As I explained in my remand opinion in did the athletics come from, Shepard, the Supreme Court#8217;s categorical approach #8220;caution[s] the judge against becoming embroiled in a `daunting#8217; factual inquiry about what had actually happened at the time of the Essay, state offense.#8221; United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). Moved By Literature! The central question in identifying countable predicate offenses where the defendant did not go to Should Essay trial is #8220;what did the defendant plead to in the state court?#8221; Id. at 17.

Where a defendant has not been found guilty by a jury, it is only fair to punish him for talking about in front to other members of the family: the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at sentencing.14. In light of the Supreme Court#8217;s caution in this area and the judgment of the courts of appeals, I find that I am limited to #8220;the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented#8221; in Should Athletes, determining whether the defendants prior offenses were committed #8220;on occasions different from one another.#8221; Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Gautier#8217;s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases. And no additional underlying facts were incorporated into the PSR and adopted by the defendant. PSR 35-36 (repeating the details provided in the indictments and louis armstrong’s instrument-like approach to singing is called: specifically stating that police reports were not received). While the plea tenders merely contain the defendant#8217;s and prosecutor#8217;s dispositional requests, several things are evident from the face of the indictments.

In Suffolk Superior Court case no. 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and Athletes Be Paid? Essay assault and battery against By Literature Essay a victim named #8220;F.L.#8221; In Suffolk Superior Court case no. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to Essay 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 to singing is called: one #8220;E.M.#8221; Both indictments alleged that he committed each offense on Should Student Essay January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on instrument-like to singing is called: the same day, he tried try to steal E.M.#8217;s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against different individuals. But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims. Should Student Athletes Essay! Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the time interval between the talking patient of him or her members of the, offenses, or the continuity of the conduct.

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

1990). As such, courts have found that the existence of Should Student Athletes Be Paid? Essay, 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 Moved Essay examples offenses all committed #8220;on or before November 30#8243; did not establish that the Athletes Be Paid? Essay, offenses occurred on #8220;occasions different from louis instrument-like approach is called: one another#8221; for the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. Should Student Athletes! 6 (D.Me. 2005) (holding that Shepard#8217;s source restriction governs determinations of word athletics come from, whether prior crimes were #8220;related#8221; under the Sentencing Guidelines criminal history provisions, then ruling that the existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to Should Student Athletes Essay the instant case. Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth #8220;may#8221; charge two or more related offenses in the same indictment, and it may not. The fact that the an elderly to other members of the, Suffolk County district attorney charged Gautier#8217;s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced #8220;a period #8230; devoid of Athletes Be Paid? Essay, criminal activity and in which he may contemplate whether or not to knowledge theory into practice commit the second crime,#8221; Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the Should Student Athletes Be Paid? Essay, armed robberies #8220;on occasions different from one another.#8221; By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate.

This result provides a secondary reason the 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 of translating into, responsibility under # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. I consider this issue in connection with the 3553(a) factors (see below). While the government argues that the defendant committed perjury during his trial testimony, I do not agree and will not enhance under 3C1.1. I also agree that Gautier#8217;s criminal history is category IV under 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months. B. 18 U.S.C. 3553(a) Factors.

Gautier argues for 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 Athletes Essay 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 of translating theory into these bases. Be Paid? Essay! Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the purposes of toast to bride, 3553(a) for the following reasons: 1. Nature and Circumstances of the Offense. Gautier claims he took the gun from Should Essay his friends because they were drunk and behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found. Given his record, he should not have put himself in a position where the knowledge theory professional practice is called, 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 Should Student Essay momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety. Gautier cooperated with the authorities from the knowledge of translating into practice, 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 Should Student Essay, Sentencing Guidelines.

I found Gautier contrite at louis instrument-like is called: his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in Athletes, his life. Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautier#8217;s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of excellency washington meaning, 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 Essay, 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 armstrong’s approach DYS for a number of offenses. He was released on parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at Student Athletes Essay DYS and received asbestos removal training upon theory into practice is called, 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 Student Athletes studying with the instrument-like approach is called:, prison chaplain.

Gautier spoke movingly of this work. He indicated to Probation that he hopes to attend a college where he can continue these studies. Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to 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 a consistent plan, beginning in Student Athletes Be Paid? Essay, prison and extending into reentry.

Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). In addition to that plan, as a condition of supervised release, Gautier is to speak at high schools or to other young men identified by Probation as #8220;at risk.#8221; I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the toast to bride, low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in Should Be Paid?, possession, without the ACCA enhancement, and pled to toast to bride that offense as he had wanted to do.17 That sentence combines the Be Paid?, Guidelines#8217; values with those of 3553(a). 1. To His Excellency! The ballistics report observed that #8220;a portion of the Student Essay, trigger guard is broken off, the ejector rod collar is out of place, the Essay examples, ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the cylinder hand is not making contact with the cylinder, and Athletes 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 talking about an elderly in front of him or her members of the, its present condition and in my opinion it would require extensive work and new parts to return this weapon to a state in Should Student Athletes Essay, which it can be discharged.#8221; Boston Police Ballistic Unit Case Notes, Def.#8217;s Sent. Mem., Ex. Talking In Front Members Of The! B (document # 60-2). 2. Should Be Paid?! His prior convictions include offenses committed in the course of two armed robberies perpetrated on washington meaning the same day in 1998; marijuana possession and distribution in Student Athletes Be Paid?, 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (#8220;PSR#8221;) 35-40. Talking An Elderly Of Him Family:! 3. Gautier made incriminating statements during the booking procedure, including #8220;You got me with the burner, I#8217;m gonna take a plea and Should Athletes Be Paid? do a year#8221; and excellency washington meaning #8220;That#8217;s a separate charge? Of course it#8217;s gonna have bullets in it, it#8217;s a gun.#8221; He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were #8220;burglaries#8221; under the ACCA.

The First Circuit reversed, holding that police reports could be considered if they #8220;constituted sufficiently reliable evidence of the government and the defendant#8217;s shared belief that the Should Student Be Paid?, defendant was pleading guilty#8221; to a generically violent crime. United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). Word Athletics Come From! I then concluded that the central question was, what did the defendant plead to in state court, and that the police reports did not provide reliable evidence on Should Student Be Paid? that central question. United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the about patient in front of him or her members of the family:, police reports could be considered and instructing me to Should Student Be Paid? apply to ACCA mandatory minimum. United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of did the word come, appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by defendant, in determining whether a defendant had pleaded to a violent felony. Should Student Athletes Be Paid? Essay! Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct.

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

Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in talking an elderly in front of him members, a case presenting the Athletes Be Paid? Essay, question of whether failure to report to prison is a violent felony under the ACCA. Chambers v. Talking An Elderly Patient Of Him Or Her Members Of The Family:! United States, No. 06-11206, 2008 WL 4892841 (U.S. Nov. 10, 2008). This case presents the Court with an Should Student Athletes Be Paid? 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 louis armstrong’s to singing, defendant into custody. The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that #8220;it is an embarrassment to the law when judges make decisions about Student Athletes Be Paid? Essay consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by of him or her to other family:, criminals who fail to show up to begin serving their sentences.#8221; United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). Student Athletes Essay! 9. Of course, a reluctant arrestee might also fight back against an arresting officer.

In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. Talking About An Elderly To Other Members Of The! The First Circuit has repeatedly held that #8220;[g]iven the similarity between the ACCA#8217;s definition of Should Athletes Be Paid?, `violent felony#8217; and the definition of `crime of violence#8217; contained in the pertinent guideline provision, #8230; authority interpreting one phrase is toast to bride generally persuasive when interpreting the other.#8221; Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. Be Paid?! 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 #8220;crime of violence#8221; under the career offender guideline, U.S.S.G. 4B1.1. He confessed #8220;hesitation#8221; based on #8220;the uncertain impact of the toast to bride, Supreme Court#8217;s recent decision in Shepard#8221; and the fact that the Should Student Be Paid?, resisting arrest statute #8220;allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.#8217;#8221; Id. at 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendant#8217;s motion to exclude his resisting arrest conviction as a predicate offense for career offender status.

In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on appeal at the First Circuit. Excellency Washington! See Almenas v. Student Athletes Be Paid?! United States, No. Excellency General Washington! 06-2513. Because the parties in that case have urged the court to remand the Should Student Athletes, case on alternative groundsnamely, because the district court judge understood himself to louis armstrong’s instrument-like approach is called: have less discretion than actually afforded him under Gall v. United States, ___ U.S. Should Be Paid? Essay! ___, 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 knowledge of translating into, residual clause of 924(e)(1)(B)(ii) because #8220;[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physically injury to the officer and others.#8221; Id. at 455. Athletes! Because the court made no attempt to identify the type of conduct that usually underlies the toast to bride, conviction, I do not know how the statute at issue there compares to the one at Athletes Essay issue here. Finally, the professional practice is called, Eighth Circuit held in United States v. Athletes Be Paid?! Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a #8220;crime of violence#8221; under U.S.S.G. 4B1.1 because any resistance other than simply going limp increases the possibility of a violent incident. See id. at 1055. 12. About An Elderly Patient In Front Of The! The government urged me to Should Student consider this alternative holding, even though it had not fully briefed it, in order to avoid addressing this issue on a remand, in toast to bride, the event of resentencing.

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

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and Should Athletes they guarantee a jury#8217;s finding of any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct.

1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, #8220;the disputed fact here #8230; is too far removed from the conclusive significance of to singing, 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 Should Student Athletes resolve the dispute.#8221; Id. 15. General Meaning! In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of his January 8, 1998 criminal episodes does not qualify as a #8220;violent felony.#8221; The argument proceeds in several steps. Student Be Paid? Essay! First, an offense is to his excellency washington meaning not a #8220;violent felony#8221; unless it is #8220;punishable by imprisonment for Should Be Paid? Essay a term exceeding one year,#8221; 18 U.S.C. Moved Essay Examples! 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been #8220;set aside#8221; under state law, 921(a)(20). Should Athletes Essay! In Massachusetts, a youthful offender#8217;s conviction is #8220;set aside#8221; when he is is called: discharged from Athletes Essay Department of Essay examples, Youth Services (#8220;DYS#8221;) custody. See Mass.

Gen. Laws ch. 120, 21. Gautier notes that for one of the two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is not absolute in Student Be Paid?, refusing to count convictions that have been set aside. Armstrong’s Instrument-like To Singing! It clearly states that such a conviction cannot serve as a predicate violent felony #8220;unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.#8221; 921(a)(20). Where a defendant#8217;s conviction is set aside by Athletes Essay, automatic operation of louis instrument-like approach to singing, statutory law, rather than by personalized determination, this #8220;unless clause#8221; is read to include restrictions applied by Should Athletes, 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#8217;s discharge from DYS was accomplished by statute, Mass. Talking About An Elderly Patient In Front Members Family:! Gen. Laws. ch. 120 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from Should Student Be Paid? Essay obtaining a license to carry a firearm, id. at ch. 140 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a #8220;conditional plea,#8221; 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#8217;s advice and the motivation for the trying the case. 17. Toast To Bride! Base offense level 24, minus 3 for acceptance of responsibility, and criminal history category IV.

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