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bressay heritage An independent, non-commercial site to collect and disseminate information on the natural history of Shetland. winner of a Shetland Environment Award 2004. Scottish Natural Heritage. Noss National Nature Reserve - Built for help Birds. The Noss National Nature Reserve is resume one of over 50 reserves in Scotland owned or managed by Scottish Natural Heritage. Noss comes from the Norse word for nose, an appropriate name for this sharply pointed island. From its highest point, the 181 metre Noup, on a clear day you can see the farthest parts of Shetland. Stained white and heaving with activity, the towering cliffs of the Noup are plastered with birds. The natural skyscraper houses a fascinating variety of business, seabirds from puffins and fulmars at the top to guillemots and razorbills in the basement. The most numerous birds on the cliffs today are the 45,000 smartly dressed black and white guillemots but 8,600 pairs of large and resume pdf, noisy gannets are far more noticeable. A Level! A hundred years ago the cliffs would have looked very different as gannets and fulmars, of which there are now 5,000 pairs, did not breed here until the turn of the century.
By contrast the kittiwake population has fallen from 10,000 to around 2,000 pairs today. Razorbills, puffins, herring gulls, shags and portrayal of women essay, black guillemots all nest on business coursework, the cliffs too. There is eric medcalf resume also a colony of great black-backed gulls on Cradle Holm, a high rock stack where once Shetlanders risked life and limb for extra sheep grazing and bird eggs. Photo right: Puffins along the cliff near the Noup. The cradle was a box which ran on ropes between Noss and the holm carrying sheep or egg hunters. The cliff-nesting birds are relatively safe from human disturbance now. Today's threats are more complex ranging from marine pollution to shortage of food. One danger for help many birds comes from the sky. Ng Resume! The bonxie and the arctic skua attack other birds and steal their latest catch. Bonxies arrived on the island in 1914 and there are now about 400 pairs breeding on the moor. The population of their smaller, longer tailed cousin, the arctic skua (skootie aalin) has however decreased, from 44 pairs in 1974 to just 15 in help, 1993 to just one or two pairs today.
Picture left: Cradle Holm in 1785. Rocks have since collapsed into the sea blocking the channel. Garden on the Cliffs. Much of the island is covered in moorland dominated by heather, crowberry and grasses. Odd splashes of colour occur in the form of lousewort, heath spotted orchid and tormentil, while in ng resume, June cotton grass creates a white mist. Spring squill and thrift paint the cliff tops blue and then pink during the summer, but it is on the cliffs themselves, out of reach of the sheep, that the richest vegetation can be found. Here the white flowers of sea campion, scurvy grass and Scots lovage, the deep pink of business, red campion, the yellows of roseroot and birdsfoot trefoil and blue of sheep's bit scabious combine to produce a display as fine as any garden rockery.
Photo left: Lousewort (Sookie Flooer in Shetland) - t his plant is semi-parasitic. Although it can grow by itself it often taps its roots into the root system of nearby grasses enabling it to get extra nutrition. Geology for Birds. The rocks that form Noss were originally laid down in a desert during the Old Red Sandstone period 400 million years ago. Near the ferry landing are sandstones that have been shattered and jumbled by hot gases from an ian ker aid grammar assent, ancient volcanic vent. The horizontally bedded sandstone of the cliffs have weathered to help become parallel ledges, seemingly designed for birds to set up home.
Here they are ideally placed close to rich fishing grounds. Email Resume Pdf! T he earliest signs of Humans on Noss is business help a Bronze Age burnt mound at Helia Cluve, some 4,000 years old. The remains of a medieval chapel and burial ground outside the farmhouse at Gungstie are more obvious. The population soared to essay assent 24 in the 19th century, but by 1939 the last permanent resident had left. Hametoun, also known as Gungstie, which now houses the SNH visitor centre and toilet, dates from the 17th century. Behind is the 19th century pony pund, built to house mares when the Marquis of Londonderry leased the island to a level help breed pit ponies. Resume Pdf! The animals, which were bred with as much weight as possible and as near the ground as can be got were destined for a hard and dark life in the mines of a level coursework, Northern England. A display in the pony pund. History of the ian ker aid grammar Reserve. The 313 hectare island was declared a National Nature Reserve in 1955 under an agreement between SNH's predecessor body, the a level Nature Conservancy and Garth Estate which owns the island.
Today the technological progress has made island is business help home to 350 Shetland ewes. During the lambing season the technological us lazy sheep are brought inside the Hill Dyke away from potential conflict with the bonxie. A Level! The island is a fine example of how a working farm and thesis, wildlife can co-exist. How to get there. To reach Noss you must first cross the island of Bressay to which there is a regular ferry service from Lerwick. It is three miles across Bressay to the Noss car park. A short walk along a quite steep, rutted track takes you to the ferry point. The small inflatable boat to Noss is operated by Scottish Natural Heritage. A small charge is made for the return journey. Coursework Help! Sensible footwear should be worn to negotiate the slippery rocks on technological progress has made essay, both sides of the Noss sound. Warm, waterproof clothing should also be worn, or carried, as the a level weather on Noss can be very changeable.
A walk to pdf the top of Noup can be fairly strenuous, although you get to the main bird viewpoints before this. Allow four hours to walk right around the island. Two wardens are based at the visitor centre on Noss throughout the summer. One is often available to answer any questions you may have. It is a level business help also possible to arrange guided tours with groups. If you think you need help getting into or out of the ferry please contact the SNH office as far in advance as possible. Noss has a special Open Day in July when there are various extra activities and entertainments arranged. Sorry, but dogs, other than Guide Dogs, cannot be transported in ian ker assent, the Noss ferry. Business Help! In the interests of this special place and your own safety we ask you act responsibly when walking around the island by keeping to the coastal route, leaving any gates as you find them, not leaving litter behind and ian ker, not picking plants.
Follow the Scottish Outdoor Access Code www.outdooraccess-scotland.com. Skuas breed on the moor. They are proud parents and to defend their chicks they will divebomb anyone who strays into their territories. However a direct hit is a level coursework help very, rarely made. You can deter them by eric medcalf resume holding a stick above your head or simply waving your arms. The Noss ferry runs during the summer (May-end Aug) except Mondays and Thursdays. In serious weather conditions a red flag on a pole is flown on Noss if the island has to be closed. To avoid disappointment you are advised to phone the Noss Ferry Line 0800 107 7818 before you set out for a level business Noss.
Commercial boat trips around Noss are also available, leaving from Lerwick. Contact the Tourist Office (01595 693434) www.visitshetland.com. All text and pictures copyright Scottish Natural Heritage © SNH 1999, 2005. For further enquiries contact: Scottish Natural Heritage, Ground Floor, Stewart Building, Alexandra Wharf, Lerwick, Shetland. ZE1 0LL. Pdf! Telephone (01595) 693345.
For more information on National Nature Reserves visit www.nnr-scotland.org.uk. This site is not directly connected to business coursework help any of the organisations mentioned, so comments may not necessarily reflect the email resume pdf views of the organisations, clubs or societies involved. A Level Help! The pages on email pdf, this website remain the intellectual property of the authors. They may be freely downloaded, quoted or used for business coursework any purpose, providing acknowledgement is given to the website and/or the author/s. No liability is accepted for the accuracy of this information.
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Simple Software for help Better Interview Skills. Learn how to medcalf land the a level business job with Big Interview’s powerful video tutorials and virtual interview practice software. Cover Letter Examples That Will Get You Noticed. A strong resume cover letter can mean the difference between landing a job interview and getting passed over. Read and live by this comprehensive cover letter guide from our resume expert and professional resume writer Kimberly Sarmiento and check out her cover letter examples for inspiration. You Really Do Need a Strong Cover Letter. You never get a second chance to make a good first impression in the job search.
And in eric medcalf resume most cases, your first impression on a level a hiring manager begins with your resume and cover letter. If you don’t get the cover letter right, you may never get the resume opportunity to wow them with your new suit, confident eye contact, and compelling interview stories. Even if you network your way into that job interview (and even if you got a great referral from one of your advocates), the hiring manager will look at your resume and/or cover letter and use them to form or influence an opinion prior to meeting you . That is why in a level help my 2009 book, “The Complete Guide to Writing Effective Resume Cover Letters: Step by Step Instructions,” I refer to ian ker essay aid grammar your cover letter as your handshake and your sales pitch all rolled into one. I can hear the scoffing now and the protesting that there is no way a cover letter can be that important. “Resumes are selected by key word scans or passed off from one contact to another. No one really reads cover letters anymore, right?” Wrong. The simple truth is that at some point in time your resume – and your cover letter – will be reviewed by a real live person (if you’re lucky). That person will be deciding whether or not you are worth their time to interview and your cover letter can help confirm that your resume goes into the “yes” pile rather than the “file for business help future opening” pile (or the real or digital garbage can). Sure, there are times when a recruiter or hiring manager will skip right over the cover letter and focus on the resume. But other screeners won’t even look at university, your resume if the cover letter doesn’t get their attention.
Why take a chance? Write a strong cover letter and coursework, you’ll know that you’re doing everything possible to get past the gatekeepers and score an interview. If you are wondering how to write a compelling cover letter, read on for Kimberly’s advice and examples. Three Situations When a Great Cover Letter is Even More Critical. 1) When you need to include information that should NOT go into the resume. A resume is a formal business document with strict rules that must be followed. These rules include not writing in first person or including personal information like your desire to relocate. However, there are times when you need to communicate this type of information in order to make the case for your fit for the position: Example: Your cover letter can be used to communicate your intention to make a transition in your career or move to another city/state. Thesis? Recruiters receive thousands of unqualified resumes for every position.
They will look at your resume and cover letter and a level business coursework help, immediately trash them if they don’t see a fit — assuming that you are another one of those annoying applicants who applies for every job posted. This is sample always a challenge for career changers and individuals looking to relocate and a good cover letter can make a big difference. Example: Your cover letter can also explain away other aspects of your particular career situation that might not be appropriate to business help include on in music essay your resume. For example, if you took some time away from the work force, but have kept your skills and a level, knowledge up-to-date. Additionally, in some job ads, the company will ask for specific information to be included in your cover letter. This technique is used to make screening easier — if someone can’t follow simple application directions, why waste time on an interview? Pay careful attention to resume the information they request and be sure to a level help address it. One problematic area is if they ask for salary requirements to sample be included in your cover letter. Companies make this request to help them rule out business help, individuals with higher salary requirements than they have budgeted for the position, but it can also lock you into a lower pay range than they might offer you otherwise.
However, ignoring the request could disqualify you as well. Ergo, I suggest you research the average salary for the position you are applying to eric resume in the state of the opening and include a range slightly above and below that number. There are several sites that have compiled census and other data information to give you a decent estimate of salaries by position in specific cities and states (Payscale is a great place to start). So if the average salary of your job is $60K for the location where you live (or want to live), list your salary requirements as $55K to $65K. Again, no salary information should be included in a resume. I typically don’t even include information about a level coursework bonuses or commissions for sales representatives (just awards like President’s Club or Top 5%) . 2) When you want to reference a network connection. There is no right way to email include in coursework help your resume, “Our mutual associate John Smith referred me to this role and says he thinks I will make a great fit for the job opening.” That is a reference line reserved solely for the opening paragraph of a cover letter. There are multiple ways you can mention a network connection or mutual friend in a cover letter, but such a statement has no place in a resume whatsoever. Rather than waste space on your resume, prepare a reference sheet with the aid grammar assent same header as your resume and give it to the interviewer at the end of your meeting. This sheet should include the a level business help first and last name of your references, their titles and company names, city and state, phone numbers, and e-mail addresses if possible. You can even be proactive and sample, have letters of recommendation ready to coursework hand the hiring manager at the end of your meeting, but don’t send them prior to that initial interview.
3) When you want to york university emphasize why you’re interested in the company. One way to distinguish yourself as a job candidate is to research the company you are interviewing with and talk about things you like or ask questions about the a level help work they have coming up. University Thesis? This demonstrates your interest in their particular organization as opposed to a level business coursework help them being just another job ad you responded to in your desperate attempt to find employment. You can use your cover letter to york university show that you’ve done your homework and help, see a strong fit with the organization. Portrayal Of Women Videos Essay? Within the second or closing paragraphs of help your cover letter, you can mention being interested in the specific work the company does, recent grants they have been awarded, a product they recently released, etc. Again, this is not appropriate for portrayal of women in music essay inclusion on coursework help your resume, but adding it to your cover letter can help you stand out from the stack of applications the hiring manager is sorting through on the day your resume passes by essay aid grammar him/her. How to Write a Great Cover Letter.
Hopefully I have convinced you of the importance of cover letter writing or at least how the letter can prove useful to you in certain circumstances. But how do you write a cover letter that will open doors for you? And how do you avoid mistakes that can lead to rejection? Please review these five simple rules for ensuring your cover letter leaves the hiring manager excited about meeting you. 1. First and foremost, the letter must be grammatically correct and error free! If you are not a particularly good writer, have someone read and edit the document for you. 2. If printed, the letter should be one page max. The letter should also be printed on high-quality paper just like your resume. A Level Business Coursework Help? In some instances, you might elect to cut and paste a cover letter into an e-mail and attach your resume.
If so, you want the cover letter to be easily read with minimal scrolling. So get to email resume pdf the point and a level business coursework, be succinct. 3. The letter should include examples of your qualifications. You can write a cover letter in paragraph or bulleted formats, but either way, you should include examples of your achievements and credentials. While you want to be brief, you also want to email resume encourage the reader to review your resume for greater detail. The best way to do that is to call out two or three things that you have done professionally to catch their attention and make them want to know more about you. Help? Make sure you customize the pdf letter to a level business coursework help highlight the achievements most relevant for each position.
4. Your letter should address a specific person. Whenever possible, do some research and find out the sample person’s name who will be reading your cover letter. This is a minor detail and some hiring managers won’t care, but it can distinguish you from coursework help your competition all the same. Medcalf Resume? More importantly, don’t send an obviously-generic letter that has not been customized for the company/position. 5. Your letter should end with a call to action. When you close your letter, be sure to ask for a meeting. A Level Help? It is obvious that you want an interview when you submit a cover letter and medcalf, resume, but job hunting is usually helped along with a proactive approach. Therefore, at every point in the application process you should seek to business coursework help move yourself along to the next stage of portrayal essay consideration. The cover letter is the first instance of this, so don’t miss an opportunity to a level coursework encourage a meeting with the york hiring manager at the close of your letter. Help? Also be sure to thank them for their time and eric, consideration. Check out Kimberly’s cover letter examples to see and learn from the methods that have worked for help her resume writing clients.
Cover Letter Example 1: Returning to Work after a Job Gap/Relocation. Dear Principal Townson: With five years of experience in teaching high school and a master’s degree in has made us lazy Chemistry, I believe I am an a level coursework, ideal candidate to fill the science teaching position you have open with the retirement of Stacy Jones. My teaching experience was at portrayal videos, John Smith High School in Smallville, NJ before my husband and I moved here seven years ago. While there, I taught all levels of Chemistry and helped host the science fair each year. When we moved here, I was pregnant with my oldest. Now that my youngest has started kindergarten, I am eager to return to the workforce. Although I focused on a level my family these last seven years and have not worked for pay, I kept up with developments in teaching and chemistry by reading literature and attending conferences hosted by the American Association of sample High School Science Instructors. I have also volunteered my time at the community center, tutoring all level of students in general sciences.
I look forward to raising my children in this community and someday teaching them at Rosewood High School. Please review my attached resume. A Level Coursework Help? I will be contacting you next week to ian ker schedule an interview. Thank you for your consideration. Pam’s Take: I love how this cover letter emphasizes the applicant’s relevant qualifications in business coursework help the first line. This puts the emphasis on her ability to do the job and not the fact that she’s returning to work after several years as a stay-at-home parent. Later, she briefly explains her break and how she has kept current. Her resume will clearly show a gap, so it makes sense to of women videos essay proactively address it. Cover Letter Example 2: Transitioning Careers. Blending a formal background in marketing with proven success in retail sales and customer service roles, I am looking to business transition into public relations and university thesis, believe I would make a great fit for the advertised position of business Public Relations Specialist at your company. Having both used and sold your products, I am already well versed in your brand and both present and past years’ offerings.
I have followed with excitement as you launched in European and Asian markets and ng resume, incorporated an international feel into your product line. I would bring both passion and expertise to championing your company with the press and public. I am already trained in creating buzz and awareness through social media channels including Twitter and business coursework, Facebook. When my sales team decided to participate in Walk for a Cure three years ago, we used social media to heighten our sponsorship support and progress has made essay, raised more than $20K for the event. Confident my transferable skills make me a solid candidate for this opening, I respectfully submit my resume for your review and request a meeting to discuss the opportunity further. Business Coursework Help? I will make myself available at your convenience and look forward to your call to arrange a time.
Thank you for your time and consideration. Pam’s Take: This candidate leads off with a strong statement about her career change goal and her fit for the specific position at hand. She uses the rest of the letter to discuss her interest in essay the company and some of business her key transferable skills/experience. Cover Letter Example 3: Entry Level. I am writing in response to your listing in the Memphis Gazette for a nurse’s aide. Please accept my enclosed resume for consideration. As a CPR-certified lifeguard and a LPN student at Memphis Community College, I have the formal training necessary for this position.
Additionally, with two years of experience in retail sales, I have excellent customer service skills that can translate well to patient relations. After you have reviewed my resume, I hope to meet with you to sample ng resume discuss how I can be beneficial to business coursework help your team. I look forward to hearing from you to schedule an interview at your earliest convenience. Pam’s Take: Nice concise approach for an entry-level candidate. She doesn’t have years of nursing experience to point to, so she highlights her training and technological progress us lazy essay, how her non-nursing work experience has also helped to a level prepare her. Cover Letter Example 4: Professional. As an Accounts Payable Receivable Specialist , I offer a proven ability to eric accurately process invoices, payments, reimbursements, and tax reports. I quickly learn and a level business coursework, adapt to software changes and updates and help team members resolve issues and problems they are having with data input and processing. Examples of portrayal videos essay my accomplishments include: • Handled biweekly accounts payable processing of checks and a level help, ACH payments; reconciled payments made to email accounts payable software and addressed any discrepancies that arose. • Created a spreadsheet that listed bank and routing numbers to expedite processing of expense reports.
• Uploaded and a level help, reconciled monthly phone bills for approximately 200 branches and 4 operational centers; total billing amounts were coded for technological progress various departments and branches as required. Confident I will prove valuable to your company, I respectfully submit my resume for your review. I would also like to request a personal meeting to discuss your upcoming goals and how I can help you achieve them. I will make myself available at your convenience and help, look forward to your call. Thank you for your consideration. Pam’s Take: For an experienced candidate, a bit more detail is expected. This candidate customized the york university bullet points to specifically communicate his experience with the position responsibilities listed in the job description.
As a Human Resources Manager with a strong customer service background, I offer expertise in employee relations, benefits administration, and generalist duties. I have made significant contributions in succession planning and workforce engagement as well as ensuring compliance with employment and labor requirements. I am also known for my ability to help help identify and implement key technology and process improvements. I am well-versed in Six Sigma methods and have lead projects which produced significant and sustainable savings. Email Pdf? Other examples of my work include: • Creates positive employee engagement for 2,000+ personnel at Company XYZ via proactive communications, prompt issue resolution, and fair/equitable treatment.
• Led Six Sigma project related to FMLA administration and a level help, online orientation programs for Lean Belt training. • Proved instrumental in the deployment of an E-recruitment system that serviced a Fortune 200 company; defined policies, procedures, and communication planning for technological has made us lazy the project. Confident I will make a positive impact on your organization, I respectfully submit my resume for your review. A Level Business Help? I would also like to request a personal meeting to discuss your goals for this position and my potential contributions. Technological Us Lazy Essay? I will be available at business coursework help, your convenience and look forward to your call to essay aid grammar arrange a time. Business Coursework? Thank you for your consideration. Pam’s Take: This cover letter highlights the applicant’s relevant accomplishments as a leader and eric, manager.
It goes beyond stating familiarity with the required job duties and emphasizes results in key projects. Remember that you don’t want to copy and paste your whole resume into the cover letter. Think about the key selling points that you want to feature prominently. The goal is to make them excited to learn more about a level business coursework you. Cover Letter Example 6: Senior-Level Executive. As a Senior-Level Finance Operations Executive , I offer proven success in technological progress us lazy essay maximizing productivity and improving profit margins. My work spans companies and business units at various stages of a level coursework growth, including start-up, established, and turnaround settings. Believing profitability requires strong revenue generation and cost controls, I monitor budgets and sales performance closely to identify areas for improvement. I am known for enhancing overall performance through technology upgrades, advanced employee training, and implementation of best practices.
Examples of my work include: • Drove successful launch of start-up company by hiring a talent team, defining product development plans, and leading go-to-market strategies to achieve $35M+ revenue and 50% margins within two years. • Managed daily operations of a $150M subsidiary that provided a complete suite of manufacturing solutions in the US and ian ker aid grammar assent, Canada; improved profit margins on coursework overall product line 10%. • Proved vital to reorganization leadership that cumulated in eric medcalf resume a 10% productivity improvement in the sales and service organization and a 20% improvement in support organizations. As CPA and a level help, MBA, I am confident I will prove valuable to your company and respectfully submit my resume for your review. I would also like to request a personal meeting to discuss your upcoming goals and how I can help you achieve them. Has Made Us Lazy? I will make myself available at your convenience and look forward to coursework help your call. Thank you for your consideration.
Pam’s Take: This cover letter nicely distills years of eric experience into a concise overview that really “sells” achievements most relevant to the specific advertised role. Each bullet presents a compelling high-level overview of a specific position, complete with impressive data points. It’s hard to be this concise when talking about a long career! However, a concise letter is business always more effective — make the most exciting information jump out of the letter and grab the recruiter’s attention. Many thanks to Kimberly for her expert advice and cover letter examples! Have other thoughts on email pdf what would make a great cover letter? Leave a comment below. Humor: Mac and Charlie from “It’s Always Sunny” teach us an important lesson about what NOT to include on your resume. Enjoy! Pamela Skillings is co-founder of Big Interview.
As an interview coach, she has helped her clients land dream jobs at business help, companies including Google, Microsoft, Goldman Sachs, and JP Morgan Chase. She also has more than 15 years of experience training and advising managers at organizations from American Express to us lazy essay the City of New York. She is an adjunct professor at New York University and an instructor at help, the American Management Association. 14 Comment to Cover Letter Examples That Will Get You Noticed. Good article, Pam. Ian Ker Aid Grammar? I agree totally with points 2 and 3. I recently was coaching someone on how to use step 2. If you were submitting just a resume, like I know a lot of applicants do, it would seem very awkward to business help include that reference somewhere in the text of the resume. Pdf? It is business coursework good to include that in the first couple sentences to make the person’s name stand out. Who you know goes a long way in the career field! Thanks for eric the comment! Yes, it’s amazing the difference that a referral can make.
very helpful, I have been applying but never landed even a single interview. I have applied so many jobs online but i have never got even one call for business interview. Thank you very much for this information, I really liked the points 1 and essay, 3, I consider this information very clearly exemplifies the elements that must be considered to make a cover letter. This is an coursework help, excellent phrase: You never get a second chance to ian ker essay aid grammar make a good first impression in the job search. Thanks.
Your suggestions are concise and helpful for business the many of us out here sending in application after application. Essay Aid Grammar Assent? What is your opinion on how to show that you are attentive to detail (one of job responsibilities for a current job opening) . I was thinking that I could point out a level coursework, some typos on the companies website. Do you think this would be taken as a criticism rather than a helpful suggestion? Great website! Thank you! These are all very helpful examples! I do have one question: It seems unconventional — and a bit overly assertive – to jump right in on the the ian ker essay first sentence of the letter without introducing yourself by name. The standard: My name is coursework —- and I am applying for eric resume the —- position.
Is it really ok to do this these days? Excellent written and business, well explained. As a recruiter I honestly don’t spend much time reading cover letters. Hiring managers have to email sort through hundreds of resumes and a level help, realistically don’t have time to give most resumes and cover letters more than 30 seconds to scan for the information they are looking for. Ian Ker Essay Aid Grammar? The cover letter should be short, sweet and highlight the key points you want us to know. Regarding the comments above about applying for jobs but not getting interviews. A Level Coursework? The resume is the most important part of the application and must be well written with clean formatting. Recruiters and pdf, HR Managers want to get to the point of where have you been working, for how long and coursework help, what have you accomplished? Also, you may want to tailor your resume and cover letter to each job you are applying to sample so that it shows to coursework help be a good match for the job. Of Women In Music Videos? Furthermore, you should do more than just apply for a job online you need to network with recruiters, attend industry trade shows, join group discussions on Linkedin and business, more to has made us lazy essay get you name out there.
Love your site. In Example 5 above, you have a misused word. A Level Business Coursework Help? It says, “…and have lead projects which produced” when it should use “led”, not “lead” as lead is current tense and led is past tense. your comment is email so helpful… thank you. Why do you put a comma after dear but also a colon?
What is the correct punctuation for a formal cover letter? Do you think it’s appropriate to arrange a time on the cover letter to call the employer so that you can schedule an interview with them? Those letters are really engaging and a level coursework, a lot creative. A project engineer or project manager will list projects successfully handled as achievements. Pamela Skillings is co-founder of assent Big Interview. As one of the country's top interview coaches, she has helped her clients land dream jobs at companies including Google, Microsoft, Goldman Sachs, and business help, JP Morgan Chase. She also has more than 15 years of experience training and advising managers at organizations from American Express to the City of New York. She is an adjunct professor at New York University and an instructor at the American Management Association. Continue reading.
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100 Easy Argumentative Essay Topic Ideas with Research Links and Sample Essays. VirginiaLynne has been a University English instructor for business help, over 20 years. She specializes in helping people write essays faster and sample ng resume easier. Need a great argument topic? Below I give over 100 ideas. You'll write faster and easier if you pick a topic based on: Knowledge: Picking a topic you already know a lot about a level business coursework can make research faster and easier.
Interest: Picking a question you want to ng resume know more about a level coursework help can make this paper more interesting. Available Sources: I give links to many sources. Check those for articles first and email resume pdf if you find some, your work is business coursework half done. I also save you time by giving you links to of women in music essay videos and sample student essays. Check out my guides for writing papers too. A Level Business Coursework. Good luck! If you get a good grade, be sure to come back and portrayal of women videos essay tell me! 1. Instructions for how to (and how not to) pick a topic. 2. Lists of topic ideas (in the categories of food and health, obesity and dieting, recycling and the environment, families and relationships, and science and technology, with videos and many links to research and student essay examples.
3. Step-by-step instructions for a level business coursework, how to write your essay. Choosing a topic that everyone is talking about makes writing an argument essay easier. Make sure you choose a question that doesn't have an of women in music essay answer people already agree on. Pick a reader that doesn't agree with you, so that you are not preaching to the choir. It also helps if the topic is something everyone has an opinion about: this will make it easier to get examples to back up your essay, either from articles or from people you interview. Business Help. Finally, you probably want to pick a topic that is email resume interesting to you and that you care about. Steer clear of overused topics like abortion, gun control, and the death penalty. For one thing, your instructor has already read far too many of these essays and a level help is not only email pdf probably bored with the topic, but also has already heard everything you might say. Moreover, although those may seem like easy topics, they really aren't, because most people are set in their ways about these issues and it is hard to think of an argument that might change their minds. Is Deforestation Worth it?
Do the economic benefits of cutting down forests outweigh the environmental damage? What is Love? What kind of love leads to a lasting relationship? Stay-at-Home Dad: Is it a good idea for a father to raise his children full-time? What causes a man to become a stay-at-home dad and can it work out well for a family? Hunger Hurts: Should Americans think and do more about the hunger faced by people around the world? Why are Americans rapidly becoming more obese? Why are Americans rapidly becoming more obese? What can be done to help children maintain a healthy weight? How can people lose weight and keep it off? Is weight gain caused by genetics, environment, or some other factor?
How do naturally thin people stay that way? What is the relationship between food, exercise, and coursework help weight? Are low carbohydrate diets (like the york university thesis, Paleo, Adkins, and business help South Beach diets) really the york thesis, best? Do planned-meal diets like Jenny Craig and Nutrisystem really work to help people keep weight off? Why are Weight Watchers and other calorie-counting diets often considered the best by doctors? Is controlling weight really a matter of a level business coursework help calories in, calories out? What is the best diet for a young adult? Can vegetarian diets be healthy? Why are so many people now choosing to go on gluten-free diets? Is sugar really bad for you? Does restricting the size of progress soft drinks that can be sold really help health?
Should schools have vending machines that sell sodas, candy, and other bad snacks? What can schools do to promote better health in students? Does intermittent fasting really help you to be more fit? How can morbidly obese people lose weight safely? Is the T.V. show The Biggest Loser helpful in motivating people to be healthy? Does the show create negative or positive feelings about morbidly obese people? Does it exploit the contestants? What causes anorexia? How can it be prevented?
How can you help an anorexic friend? Why are more young men becoming anorexic? What is a level business morbid obesity? How does morbid obesity affect a person's health? What should we do about the cost of healthcare for overweight people? Should there be a greater insurance premium for people who are obese? Is surgery a good method for people to lose weight? Are sugar substitutes helpful for dieting? Is fat really bad for you? Is a low fat diet the best? Research Articles on Obesity and sample ng resume Dieting.
Here are some professional articles and websites that can help you start. Many of these articles contain links to other sources also. Long Term Weight Loss Maintenance, by Rena R. Wing and Suzanne Phelan, in American Society for business, Clinical Nutrition (2005). The National Weight Control Registry. Ng Resume. An account of over 10,000 individuals who have lost significant amounts of weight and kept it off for long periods of business help time. Overweight and email resume Obesity. U.S. government reports from the Centers for a level business coursework help, Disease Control and Prevention. Diet Topic Articles from Psychology Today . What can we do to help people around the world have clean water to drink?
Is hunting good or bad for the environment? Should the horns of ng resume wild rhinos be removed to prevent them from being poached? Can we protect wild areas and animals by business coursework help promoting eco-tourism? Should the government discourage or regulate oil drilling in the gulf of Mexico? What are the dangers of fracking? Does recycling really make a difference? Should all states adopt a deposit on soft drink bottles and cans in order to promote recycling? Should schools require students to bring refillable containers for water and ian ker assent other beverages rather than disposable ones? Should supermarkets charge for plastic bags in a level business order to encourage the use of reusable bags?
Should your city (or campus) do more to encourage recycling? What causes people to litter? What could motivate people to clean up after themselves? What causes earthquakes? What can we do to reduce death or damage from earthquakes? Or how can we better predict them? Does being a vegetarian or vegan help the ian ker assent, environment? Can using LED lights make a difference? How can composting help save the environment?
What is hazardous household waste and business why is it important not to throw it in the regular trash? What is deforestation? How does it happen? Can it be stopped? What is fracking? Is fracking worth the risks?
Does fracking hurt drinking water? What is a carbon footprint? How can we change our carbon footprint? What are the dangers for people living in cities like Beijing with high pollution? Is nuclear energy really safe? What should be done with nuclear waste? What is the york university, best way to handle our trash?
Are landfills a good idea? Where can we use solar, wind, and other alternative energy sources effectively? What is the a level business coursework help, best way to encourage alternative energy use? (Government regulations? Incentives? Helping companies that produce these products? Advertising?) The World Bank on Environment: Information and research about environmental issues around the world. The U.S. Environmental Protection Agency: On the science and technology page, find research and information under different topics like water, pesticides, or ecosystems. Discover Magazine: Search the environmental topics page for your topic.
U.S. Government Recycling and Conservation: Statistics and information. Should mothers stay home with their children? Do long distance relationships work? How can divorce be prevented? Is divorce something that kids can recover from? Are teenage marriages a good idea?
Should teenagers that get pregnant keep their children? How can you get out of the friend zone? How can you know you are in an abusive relationship? Why do people stay in abusive relationships? What are the ng resume, effects of domestic violence on a level coursework, children? Who should do the chores in a family? What are helicopter parents and ian ker essay how do they help or harm their children?
Is it good to be an only child? Is doing sports together a good thing for families? How have video games impacted family life? Why do some people treat their pets as family members? Is this a good or bad thing? How important are grandparents to a level help children today? How does interracial adoption affect a family?
Are large families better for children? How does birth order affect children? Do older people make better parents? Have cell phones and social media made families closer or not? How should (or shouldn't) you use social media in a dating relationship? How long should people date before they become engaged? What makes people have a happy, long-lasting marriage?
Are the expectations raised by resume romantic movies damaging to help real relationships? Are Beauty Pageants Good for Kids? What is nanotechnology and how has it already changed our lives? How will nanotechnology affect dentistry or medicine? How can nanotechnology be helpful in developing new types of computers, cell phones, or data storage? Does using cell phones make people more or less connected? Do cell phones cause a cancer risk? What should the laws be concerning the use of cell phones while driving? Have social media and texting hurt or improved the lives of teenagers? Why are children better at understanding new technology than their parents are?
Do violent video games cause people to sample act out violently? Should schools use video games as a teaching tool? Can students study better using digital textbooks than they can by using books, pens, and paper? Will paper and books become obsolete? What is the difference between reading on help, a screen and reading a book? Should everyone wear a microchip with their personal information to avoid identity and credit card theft?
Should parents be able to ian ker essay choose the coursework help, genetics of of women in music videos essay their children? Are smart watches going to replace cell phones? What is the next big leap in technology? Which is better, the business coursework, PC or the sample, Mac? If we can help people live longer through technology, should we? Is there a balance between quantity and business quality of life? How can 3-D printers be used effectively? SciTech Daily: Science and new technology news and research reports. MIT Technology Review: Massachusetts Institute of sample Technology's website for a level business, explaining new technologies.
If you want to resume write a quick and business easy argument paper, follow these simple steps: Pick a topic question from the lists above. Decide your answer to the question (this is your beginning thesis). Write down everything you know about the topic. York University Thesis. Talk to your friends or family to find out what they know, have heard, or have read recently about the topic (have them give you the source if they know it). Look at some of the research articles or web sites about that topic. Look back at your question and refine your answer. A Level Help. After gathering information, you may want to change it.
Write down three or more best reasons for ng resume, your answer (these are your topic ideas for the body of your essay). Using those reasons, look at the articles you've read or the ideas you've already written down for some evidence to support those reasons (this is the backup evidence for each topic sentence). A Level Coursework Help. Write your outline, then follow it to write your paper. Do you have to do research for your paper? 100 Great Psychology Research Paper Topics. by Virginia Kearney 2. Argumentative Essay Topic Ideas and Writing Prompts.
100 Expository Essay Topic Ideas, Writing Tips, and progress has made us lazy Sample Essays. by Virginia Kearney 22. How to Write a Summary, Analysis, and Response Essay Paper With Examples. by Virginia Kearney 55. 100 Science Topics for a level business coursework help, Research Papers. by Virginia Kearney 109. In Music Videos Essay. How to coursework Write an Argument Essay Step by Step. by Virginia Kearney 15.
This is a great resource. I've just entered into college, and technological us lazy didn't know where to begin writing my first argumentative essay. Thanks so much - voted up :) Do you know or have you written of anything to do with the argumentative essay of should smoking be banned because I have to do essays with research and I need some reliable sites. Virginia Kearney 3 weeks ago from United States. A Level Business Help. Hi Aashi! I'm glad that younger students are finding my work too. Sample Ng Resume. Although I now teach college students, I started my career teaching in a level business coursework help your grade for several years. I will have to put together some topics for primary grade students. Progress. Until then, you might want to look at a level business coursework my High School Topics, which have many ideas which are good for your age too. York University. I am in primary school in grade 6 and I want some good topics for primary students.
Good job making this page. A Level Business Help. I don't know what to eric resume do at first. I was clueless and was browsing for answers but none of coursework them made sense except for this. Thank you very much! I think the assent, ideas are wonderful and are very helpful! I am a Junior in high school and I have to a level help write an resume argumentative paper. Business. Your insight on how to do so has been extremely helpful. I wanted to thank you for your intelligence on how to essay write an a level argumentative paper.
Thanks! This website was very useful for picking out a topic for my essay. Again, thank you for sample ng resume, helping me out! King of Stuff 8 months ago. I find this website very interesting and helpful. A Level Coursework Help. Thank you for making it! Your tips on ng resume, writing essays is really helping me out. Mr. fluffypants 8 months ago. Coursework Help. I love this article. You have helped me with my school essay.
Thank you! letter pile 8 months ago. I LOVE this website. Sample. Thank you so much for writing it! It has helped me so much! Virginia Kearney 9 months ago from United States. A Level. Hi Nataly! You are welcome to shift the focus of the questions to whether governments should take action. Email Resume. My questions and help topic ideas are just a starting point. I teach my students that there are a variety of ways to solve problems and one of those is by having governments or larger groups take action. Eric Medcalf. However, I want my students to focus more on how they and their audience can personally take responsibility and action, so often my questions are more locally written.
In my class, I focus on having my students address a very particular audience in their persuasive essays because effective arguments come from really thinking carefully about the business help, viewpoint of the other person and ng resume developing points that would persuade that person. In my class, I do allow TedTalks as sources if the student is using other sources as well. However, I don't think all professors do accept that type of source. Most people who do TedTalks have written out coursework help, their arguments in papers or books, so I'd suggest you research to see if there is an online paper you can cite as well. I find your lists great and ian ker aid grammar assent really appreciate the coursework, idea of providing useful links. Sample. Still, I would rather shift the help, focus of ian ker some questions so that they ask students to a level business help think more globally, from the medcalf resume, point of view of the a level business help, state and the society.
For example, should the state take actions to prevent high rate of divorces, which ones? Are people in eric resume developed states responsible for providing water and food to business help the starving people around the globe?, etc. Portrayal Of Women Videos. I also wanted to ask you if TedTalks videos are officially recognized as credible resources. Have you ever heard of any cases when professors forbid to use it? Thank you for a good work! Hulya Gulyurt 9 months ago. This helped me so much with my homework, thank you! Great Efforts . Well done. should guns be allowed on school campus. Virginia Kearney 13 months ago from United States.
This is an interesting topic idea bojoi--and definitely one that would be controversial. I'd love to hear how you would develop your thesis. preetyradd 14 months ago. i think this is cool i got a good grade on a level, my essay thanks. Kanwal asif 14 months ago. Ng Resume. Thank u so much God bless u. Virginia Kearney 17 months ago from business help United States. Glad this will help you three keys! ThreeKeys 17 months ago from Australia. Im about to eric resume try out your suggestions in this great article.
Im excited to see what the outcome will be in how I take a more pointed or comprehensive approach in a written debate so to speak. Thanks so much! Thank you it is really helpful. Thank you so much for the topics. Trisha Roberts 3 years ago from Rensselaer, New York. Love the great ideas! Absolutely love the list you shared with us. Thank you so much for this Article!
Kalai 3 years ago from Petaling Jaya, Malaysia. Sometimes i find that the most easy or obvious topic the hardest to argue about. The less the a level business, words the greater the ian ker essay, headache. Business Coursework. When we prepare for debates, each word has the ability to make or break the case. Progress Us Lazy Essay. Rae Saylor 3 years ago from Australia. Coursework Help. What an interesting range of ideas and tips! Massive thanks for writing this, pal! Voted up :) Eiddwen 3 years ago from Wales. A great hub Victoria ;thanks for sharing and I vote up. Ng Resume. Dianna Mendez 3 years ago.
This is very useful to coursework those who must teach essay writing (and to those who must write them). I know I will be using this next time I teach English Comp. Voted up++ ExpectGreatThings 3 years ago from Illinois. Wow! This is a very impressive list and york university great instructions. I like how you were able to write the questions without giving away your position on each topic. - Ginger. Eric Dierker 3 years ago from Spring Valley, CA. U.S.A. Very interesting.
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dessay height Drunk Driving is a serious offense. Business Coursework Help! Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations – Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. Eric! According to a level business coursework help, Massachusetts DUI law, a person is portrayal essay, considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater.
If a driver is under the age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at a level coursework or above the legal limit will be arrested and booked on DUI charges. Of Women In Music Essay! At this time, it’s best to contact a seasoned Boston DUI lawyer who has the a level business experience and skill to sample, 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 coursework, court. There are defenses to aid grammar, a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Field sobriety tests, for a level business example, are not reliable indicators of intoxication. Especially when asked to perform them at night, on the shoulder of the road, in the cold, in resume pdf, the glaring squad car headlights. We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program.
The case is dismissed after mandatory alcohol education classes and one year of probation and, and you can get a hardship driver’s license within four days of the plea hearing. A second DUI is harsher, and often requires going to trial. A second offense is punished by a minimum of a level coursework help, two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for sample ng resume two years. Massachusetts OUI/DUI Law – First Offense Penalty. •Jail: Not more than 2 1/2 years House of a level business, Correction. •License suspended for 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. It is similar to, but not technically a guilty plea. (More info on a CWOF.) •Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance.
•Unsupervised probation for portrayal of women one year. •Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. •License suspended for 45 to 90 days (not including any penalty for breath test refusal) •License suspension is 210 days for drivers under age 21. •You are eligible for a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties: The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law – Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years.
•License suspended for 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’t be eligible for a hardship or full license restoration for at least 3 years total.) •As of business help, January 1, 2006 – Interlock device installed in your car at eric your own expense for 2 years, when you become eligible for hardship or license reinstatement. Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for by the help 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 portrayal of women in music videos essay 2 years as a condition of a level business coursework help, any license reinstatement (including hardship license).
•If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only be the penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for eric detail on the implications of a 2nd offense drunk driving defense. Business Coursework! I can almost always negotiate for the Alternative Disposition above for any second offense OUI conviction, but it is of women videos essay, still a tough punishment to a level help, accept for many people. Given that there isn’t that much risk of a worse outcome if you choose to fight the case in court, most people choose to technological progress has made, take a chance at a level business no penalty, even on a weak case. Remember, even if the prior is in another state, or decades old, you will be forced to of women, get an interlock device installed in your car as a condition of license reinstatement. Coursework! The Registry is technological has made us lazy essay, harsh on this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is a good reason to a level help, strongly consider fighting the case. Massachusetts OUI/DWI Law – Third Offense Penalty(3rd) Penalty. •Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in a prison treatment program.
•License suspended for 8 years, work/education hardship considered in 2 years; general hardship in us lazy essay, 4 years. •Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 3rd Offense OUI Penalties: For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. For a 3rd offense charge, this is a level business help, a good reason to progress has made, fight the case and look for a level a chance to resume, win and a level coursework, avoid jail time. It usually only makes sense to sample ng resume, work out a level coursework a deal if jail time is off the eric resume table, which only happens if the court can’t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is a Felony Offense) •License suspended for a level 10 years, work/education hardship considered in 5 years; general hardship in 8 years.
•Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 4th Offense OUI Penalties: Everything about technological has made, a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Even a small chance of winning the case is worth the risk, since it is probably your only chance to avoid jail time. You need to consider fighting your case at trial in almost all cases.
MASSACHUSETTS OUI/DUI LAWS – FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for details. OUI With Serious Bodily Injury – Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer.
You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is charged and prosecuted. Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. A Level Business Coursework! (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 ian ker essay public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of a level business, chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment. There shall be an assessment of $250 against a person who is convicted of, is placed on portrayal of women in music videos probation for, or is business help, granted a continuance without a finding for or otherwise pleads guilty to email, or admits to a level coursework help, a finding of in music, sufficient facts of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. There shall be an assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to a level coursework help, or admits to a finding of sufficient facts for portrayal of women operating a motor vehicle while under the business coursework influence of ian ker essay assent, intoxicating liquor or under the influence of a level business, marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. If a person against whom a fine is assessed is 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 this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the monies, from time to time, into the Victims of york, Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to said section 66 of said chapter 10, by the victim and witness assistance board for the purposes set forth in said section 66. Fees paid by an individual into a level business coursework help, the Victims of Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by the court pursuant to this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the portrayal in music videos amount of a level help, funds imposed and collected pursuant to this section to the house and senate committees on technological us lazy essay ways and means and to the victim and a level, witness assistance board not later than August 15 of each calendar year. If the videos essay defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for a level business coursework help probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served thirty days of portrayal of women in music videos, such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of a level business, such institution for university thesis the following purposes only: to attend the funeral of a relative; to a level help, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to ng resume, the extent such resources are available in a level business help, a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of ng resume, a like offense two times preceding the coursework date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and eighty days nor more than two and one-half years or by a fine of university thesis, not less than one thousand nor more than fifteen thousand dollars and by imprisonment in a level help, the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from ng resume, his sentence for a level business coursework good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the videos essay commissioner of business help, 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 essay aid grammar assent, 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 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 a level business coursework help the department of correction; and provided, further, that the defendant may serve all or part of medcalf resume, 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 commonwealth or any other jurisdiction because of a like offense three times preceding the date of the help commission of the offense for which he has been convicted the sample defendant shall be punished by a fine of coursework help, 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 ng resume a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for coursework probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of of women in music, 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 business coursework, a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for york university thesis the purposes of an a level, aftercare program designed to sample, support the recovery of an business, offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for email resume pdf 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 a level business help 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 eric imprisonment for not less than two and one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the a level business sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of such sentence; provided, further, that the portrayal of women videos 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 employment pursuant to a work release program; or for the purposes of an aftercare program designed to a level business coursework, 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 the extent that resources are available in york thesis, a correctional facility specifically designated by the department of a level, 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 has made us lazy such complaint, nor shall the prosecution on such complaint be transferred to business coursework help, another division of the email resume district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant’s record, if any, of a level business, prior convictions of such violations or of ian ker essay aid grammar assent, assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of coursework, this paragraph shall not justify the of women in music videos essay postponement of any such trial or of the acceptance of any such plea for a level more than five working days after the date of the defendant’s arraignment. The commissioner of probation shall give priority to requests for such records. At any time before the eric commencement of a trial or acceptance of a level, a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to ng resume, section thirty-five A of chapter two hundred and coursework, eighteen alleging a violation of this subparagraph and one or more prior like violations.
If such application is made, upon motion of the prosecutor, the sample ng resume court shall stay further proceedings on the original complaint pending the determination of the coursework help application for the new complaint. If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to medcalf, prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and help, eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint. (2) Except as provided in subparagraph (4) the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to aid grammar, any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to a level business coursework help, an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by eric medcalf resume a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is coursework help, charged. (3) Notwithstanding the provisions of section six A of sample, chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the business coursework offense for which he has been convicted. (4) Notwithstanding the progress us lazy provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to business, an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the date of the commission of the ng resume offense for which he has been convicted, shall receive a report from the probation department of a copy of the defendant’s driving record, the help criminal record of the defendant, if any, and such information as may be available as to ng resume, the defendant’s use of business help, alcohol and email resume, may, upon a written finding that appropriate and adequate treatment is available to the defendant and a level business coursework help, the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant’s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by said division in consultation with the department of correction and with the approval of the secretary of health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of technological essay, alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Business Coursework! Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the defendant to pdf, comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and business, seventy-nine shall be commenced.
In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to pdf, attend or complete the help residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and progress has made essay, unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for a level business coursework help furlough or receive any reduction from his sentence for good conduct until such person has served two days of such sentence; and provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to of women videos essay, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to a level business coursework, engage in employment pursuant to a work release program. If such defendant fails to attend or complete the residential alcohol treatment program before the second date specified by resume the court, further proceedings pursuant to said section three of a level help, said chapter two hundred and seventy-nine shall be commenced, and technological progress essay, the court shall forthwith sentence the a level help defendant to imprisonment for eric resume not less than thirty days as provided in subparagraph (1) for such a defendant. The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and provided, further, that such person files with the court, an business coursework help, affidavit of indigency or inability to pay and that investigation by email resume the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of business, waiver of the entire amount of email, said fee, the court may direct such individual to a level coursework help, make partial or installment payments of the cost of said program. (b) A conviction of a violation of university, subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by coursework a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and aid grammar assent, has consented to a level business help, probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the sample revocation of the a level coursework license or the right to operate.
Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the medcalf resume same to the registrar. The court shall report immediately any revocation, under this section, of a license or right to operate to a level help, the registrar and to has made essay, the police department of the a level help municipality in which the york university thesis defendant is business coursework, domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by reason of 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 coursework 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 york university thesis, a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the a level coursework help commission of the offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to of women in music videos essay, operate to business help, 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 email, three months from the a level date of conviction, apply for and shall be granted a hearing before the registrar for progress has made the purpose of coursework help, requesting the issuance of a new license for portrayal of women in music employment or educational purposes, which license shall be effective for not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the a level help 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 eric, necessary; and provided, further, that such person may, after the expiration of six months from the a level business coursework date of conviction, apply for and shall be granted a hearing before the aid grammar registrar for a level 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. (2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the portrayal of women essay date of the commission of the a level business offense for which such person has been convicted, the registrar shall not restore the york license or reinstate the a level 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 1 year from the date of conviction, apply for aid grammar and shall be granted a hearing before the a level business help registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for sample not more than an identical twelve hour period every day on the grounds of a level business coursework, hardship and a showing by the person that the email resume 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 a level help, subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the medcalf resume registrar for business the purpose of requesting the university thesis issuance of a new license on coursework help a limited basis on the grounds of hardship and a showing by ng resume the person that the causes of the present and past violations have been dealt with or brought under control and a level coursework, 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 pdf 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 a level business help, any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the aid grammar commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to a violation of 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 a level coursework license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for of women in music 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 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 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 a level business coursework help, 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 essay, ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by a level help the licensee for technological progress us lazy essay the duration of the hardship license. (31/2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the offense for which such person has been convicted, the a level help registrar shall not restore the license or reinstate the right to operate of such person unless the york university prosecution of coursework, such person has been terminated in favor of the defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the ian ker essay aid grammar assent conviction, apply for and shall be granted a hearing before the a level business coursework help registrar for the purpose of requesting the technological progress has made essay issuance of a level, a new license for employment or education purposes which license shall be effective for has made us lazy 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 business coursework, past violations have been dealt with or brought under control and ian ker essay assent, the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for business coursework help 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 the terms and conditions as he deems appropriate and necessary. Sample! A mandatory restriction on a hardship license granted by a level coursework help the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (33/4) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of ian ker essay, 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’s license or right to business coursework help, operate a motor vehicle shall be revoked for the life of such person, and such person shall not be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on medcalf resume a limited basis on the grounds of hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in accordance with the provisions of chapter thirty A, from a level, any order of the registrar of motor vehicles under the essay aid grammar assent provisions of this section.
(4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant’s biographical and a level business, informational data from resume, records of the department of probation, any jail or house of corrections, the department of correction, or the registry, shall be prima facie evidence that the defendant before the a level coursework help court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the sample defendant’s guilt on coursework help the primary offense, as evidence in any court of the essay assent commonwealth to prove the defendant’s commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of subdivision (1) of this section, a person shall be deemed to a level business coursework, have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the york university thesis case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of a prosecution upon appeal or otherwise after such a conviction. Where there has been more than one conviction in the same prosecution, the a level business coursework help date of the first conviction shall be deemed to be the date of conviction under paragraph (c) hereof.
(e) In any prosecution for a violation of university thesis, paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by coursework help 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 the defendant was afforded a reasonable opportunity, at his request and at york university thesis his expense, to have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. A Level Business Coursework! Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against essay 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 help false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon ng resume, any such way or place while under the influence of intoxicating liquor; provided, however, that in a level, an instance where a defendant is under the age of twenty-one and such evidence is that the percentage, by weight, of essay assent, alcohol in the defendant’s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of help, paragraph (f), suspend such defendant’s license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by 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 percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to access, or upon any way or in eric resume, any place to business, which the public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in ng resume, the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of a level business coursework help, chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in 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. Sample! If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a level business coursework a period of at email resume least 180 days and up to business coursework, a lifetime loss, for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in pdf, accordance with this paragraph for a period of a level business, 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of ian ker, 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 a level business help, 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 york university thesis, any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon such refusal. If a person refuses to coursework, 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 email pdf 10 years. If a person refuses to submit to any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by 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. 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’s license or right to operate issued by a level business coursework the commonwealth; (ii) provide to each person who refuses such test, on behalf of the registrar, a written notification of suspension in a format approved by the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of 12 hours after the york thesis operator’s refusal, with the costs for the towing, storage and business, maintenance of the vehicle to be borne by the operator.
The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Each report shall be made in a format approved by the registrar and shall be made under the york penalties of perjury by the police officer before whom such refusal was made. A Level Help! Each report shall set forth the progress grounds for the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of a level business help, intoxicating liquor, and shall state that such person had refused to submit to of women in music, 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. A Level Coursework! Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the of women in music essay refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate which has been confiscated pursuant to this subparagraph shall be forwarded to business, 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 sample ng resume 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 business coursework, as to each other. No license or right to university thesis, operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of business, a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of of women in music essay, chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license.
At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of a level coursework, fact with its decision. (2) If a person’s blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on behalf of the eric resume registrar take custody of such person’s drivers license or permit issued by the commonwealth; (ii) provide to business, each person who refuses the test, on behalf of the thesis 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. Coursework Help! Each report shall be made in a format approved by the registrar and shall be made under the portrayal of women in music essay penalties of a level help, perjury by the police officer. Resume! Each report shall set forth the grounds for the officer’s belief that the coursework person arrested has been operating a motor vehicle on any way or place while under the sample influence of intoxicating liquor and that the person’s blood alcohol percentage was not less than .08 or that the person was under 21 years of age at the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the operator administering the business coursework help test or analysis was trained and certified in thesis, the administration of the test or analysis, that the test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for a level help the test was regularly serviced and maintained and that the person administering the test had every reason to sample, believe the a level help 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 ian ker essay notice of intent to help, suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by ng resume the offender of the a level help notice of medcalf resume, intent to a level business, 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 technological progress has made us lazy, such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater and upon a level, the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the driver’s license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant’s license or right to sample ng resume, operate a motor vehicle upon receipt of a level help, a report from the police officer who administered such chemical test or analysis of the defendant’s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by the registrar and has made, shall be sworn to under the penalties of coursework help, perjury by such police officer. York! Each such report shall set forth the grounds for the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the help influence of intoxicating liquor and that such person was under twenty-one years of age at email the time of the business help arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the email resume pdf person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for a level coursework help such test was regularly serviced and resume, maintained, and that the person administering the a level business help test had every reason to believe that the ng resume equipment was functioning properly at the time the coursework help test was administered. Each such report shall be endorsed by pdf the police chief as defined in section one of chapter ninety C, or by the person authorized by him, and a level coursework help, shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the has made essay defendant’s blood was administered. The license to a level business help, operate a motor vehicle shall thereupon be suspended in eric, accordance with section twenty-four P. (g) Any person whose license, permit or right to business coursework help, operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to technological progress has made us lazy, a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in any place to help, which members of the public have a right of ian ker aid grammar assent, access or upon any way to a level coursework help, which members of the ng resume public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and a level business coursework help, (iii) did such person refuse to sample, submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate.
The registrar shall create and preserve a record at said hearing for business coursework help 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 york university the judicial district in which the offense occurred for judicial review. The filing of a petition for a level business coursework help judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the email resume pdf submission thereof. Review by the court shall be on the record established at the hearing before the a level coursework help registrar. Aid Grammar! If the business coursework court finds that the department exceeded its constitutional or statutory authority, made an york, erroneous interpretation of the business coursework law, acted in an arbitrary and capricious manner, or made a determination which is thesis, unsupported by the evidence in the record, the court may reverse the registrar’s determination. [ Second paragraph of paragraph (g) of subdivision (1) effective until November 4, 2010.
For text effective November 4, 2010, see below.] Any person whose license or right to a level, operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of ng resume, such suspension request a hearing and upon such request shall be entitled to a hearing before the court in coursework, which the underlying charges are pending or if the individual is technological progress essay, under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the business coursework court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the portrayal videos essay age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to help, operate and shall direct the sample prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of coursework, 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 york university thesis, subparagraph (2) of paragraph (f) on the basis of a level business coursework, chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in sample, the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths.
If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and shall direct the prosecuting officer to a level business coursework, forthwith notify the department of criminal justice information services and the registrar of such restoration. (h) Any person convicted of medcalf, a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, may, as part of the disposition in the case, be ordered to a level business coursework help, participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. The court shall set such financial and email pdf, other terms for a level help the participation of the technological progress has made us lazy 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 a level help 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 portrayal, making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of business coursework help, his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to email pdf, be used by any person, or whoever makes false statements in an application for such a license or learner’s permit, or whoever knowingly makes any false statement in business coursework, 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 resume pdf 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 a level, unauthorized shall, for the first offense be punished by a fine of medcalf, 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 help a second offense by imprisonment in email resume, the state prison for not more than five years or in a level coursework help, a house of correction for not less than thirty days nor more than two and in music videos essay, one half years, or by a fine of not more than one thousand dollars, or by both such fine and business coursework, imprisonment; and whoever is portrayal of women in music videos, found guilty of a third or subsequent offense of a level help, 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 medcalf resume, not less than two hundred dollars nor more than one thousand dollars or by business help imprisonment for not less than six months nor more than two and one half years in eric medcalf, a house of correction or for not less than two and one half years nor more than five years in the state prison or by business both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for sample ng resume a violation of any provision of this paragraph if in the judgment of the court or justice receiving the business complaint there is reason to believe that the thesis defendant will appear upon a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to coursework help, which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in essay, an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for a level business coursework registration of essay aid grammar, 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 a level business coursework proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the ian ker essay aid grammar lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a level help a fine of progress has made us lazy, 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 level business coursework help a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by york university both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for business coursework help arrest upon technological, a complaint for a violation of any provision of this paragraph if in the judgment of the business coursework help court or justice receiving the complaint there is reason to ng resume, believe that the defendant will appear upon a summons.
There shall be an assessment of $250 against a person who, by a court of the a level help commonwealth, is convicted of, is placed on york thesis probation for or is granted a continuance without a finding for a level help 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 the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon 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 ian ker, making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of any person, shall be punished by imprisonment for a level coursework help 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 sample public has a right of access or upon a level, any way or in any place to which members of the portrayal of women in music essay public shall have access as invitees or licensees and without stopping and a level business help, making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in ian ker essay, the death of a person, be punished by 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 level coursework help, a jail or house of correction for not less than one year nor more than two and one-half years and by ng resume a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of business coursework, such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in eric medcalf resume, charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for business help the following purposes only: to attend the funeral of a relative; to progress has made essay, 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. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of a violation of business coursework, paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to pdf, the registrar, who may in a level business, any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to of women in music essay, operate. If it appears by business coursework help the records of the registrar that the person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of sample ng resume, registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the help license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the resume pdf prosecution has terminated in favor of the defendant. Business! 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 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 date of revocation following his conviction if for a first offense, or until two years after the date of revocation following any subsequent conviction; (ii) any person convicted of a violation of subparagraph (2) of ng resume, paragraph (a1/2) until three years after the date of revocation following his conviction if for business 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 york thesis, unauthorized, until one year after the date of a level business coursework help, revocation following his conviction if for a first offense or until three years after the videos date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of his original conviction if for help a first offense or one year after the date of revocation following any subsequent conviction within a period of three years. Notwithstanding the forgoing, a person holding a junior operator’s license who is convicted of essay, 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 business coursework a first offense or 1 year after the date of revocation following a subsequent conviction within a period of ian ker essay assent, 3 years.
The registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of a conviction of operating a motor vehicle upon business help, any way or in any place to which the public has a right of access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of eric, section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of a level business, any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of except by trial, judgment and sentence according to the regular course of criminal proceedings; and medcalf, 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. Business Coursework! If the york university thesis court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and business coursework, that the york thesis interests of justice require the allowance of the motion, the motion shall be allowed and help, the certificate shall be filed in university, the case. A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of a level business coursework help, original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of eric medcalf resume, a like offense by a court of the commonwealth one or more times preceding the a level help date of ian ker, commission of the offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of coursework help, felony motor vehicle homicide, operating under the eric influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003.
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR RELIEF UNDER MASS. Business Coursework! R. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and technological progress essay, operating to endanger. Coursework Help! Before me is the defendant’s motion, under Mass. R. Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of university, misdemeanor vehicular homicide on ground of coursework help, operating to endanger. For the reasons that follow, the defendant’s motion is DENIED.
At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite direction. Portrayal In Music Videos Essay! The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to business coursework, endanger, and felony motor vehicle homicide.1. It was the Commonwealth’s theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the essay aid grammar influence of at least one, and that her truck veered out of her lane of a level business help, travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of each of the charges against her.
The verdict of felony motor vehicle homicide (G.L. c. 90, §24G) required findings by the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the portrayal of women essay Commonwealth’s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of these findings is coursework help, therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to thesis, negligent or reckless operation therefore consisted principally of the help expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant. No lengthy review of either expert’s testimony is necessary here, except to say that Trooper Alvino opined, based on email resume 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 business, the defendant’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 essay aid grammar physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the a level location of the impact. The Commonwealth’s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury’s verdict on this point was adequately supported by the evidence. B. Operating Under the Influence.
The “operating under” element of the OUI (G.L. c. Resume! 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle “while under the a level coursework influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. 94C, §1], or the vapors of glue.” As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the “scheduled medications”). Medcalf Resume! The first two are depressants; the last, a narcotic.3. There was no direct evidence as to help, when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to the “operating under” element was as follows. 1. CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity.
OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for portrayal in music videos the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity. Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the OUI and vehicular homicide statutes. Even if the defendant were impaired by one or more of business help, these medications, therefore, she would not have been “operating under the influence” within the meaning of these statutes, unless she was also impaired by one or more of the scheduled medications.
2. Testimony of Dr. Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on 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. His practice is to york university, 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 business help, that they should not drive if they have taken a narcotic because it can cause drowsiness.
He further testified that patients who have had a tooth extracted sometimes experience “dry socket” three to five days after the procedure, which can cause pain to portrayal in music, flare up at that time. Business Coursework! Extraction of a lower tooth, and smoking following the procedure (the defendant is a smoker), both place the patient at increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the “monographs” that CVS, when filling a prescription, produces and staples to the bag containing the ng resume pill bottle. The monograph sets forth patient information in paragraphs headed “USES,” HOW TO USE,” SIDE EFFECTS,” PRECAUTIONS,” DRUG INTERACTIONS,” OVERDOSE,” NOTES,” MISSED DOSE,” and “STORAGE.” Each monograph is lengthy (about half of an business coursework help, 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 aid grammar, heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. … SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising.
If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: … Use caution when performing tasks requiring alertness. … SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly. A Level Business Help! Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. …. PRECAUTIONS: … Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia.
In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for aid grammar the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from business coursework, post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital’s psychiatric unit from then until the 29th). She also stated that she had been having trouble sleeping, and that the night before the essay aid grammar assent accident, she had gone to bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth’s medical expert (Dr. Coursework! Brower) testified concerning the indications, action, and side effects of the medications the email pdf defendant had been prescribed. A Level Business! Of the scheduled medications: 1. Ian Ker Essay Aid Grammar! Oxycodone (Percocet) is coursework, a narcotic analgesic, derived from the opium plant and used for moderate to portrayal of women in music videos, severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and help, vigilance; difficulty coordinating eye movements; and light-headedness.
• Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and sometimes for insomnia. Portrayal In Music! It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in a level business coursework help, an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. • Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Medcalf Resume! Side effects, which can occur in therapeutic doses, include impairment and slowing down of mental and motor functions, and a level business coursework, drowsiness. A single dose can affect the patient for up to university, 24 hours.
Two milligrams is the maximum dose normally prescribed, and business coursework help, is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. • Effexor is an antidepressant, also used in generalized anziety disorder. Resume! 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. Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Business Coursework Help! Both therapeutic and side effects may decrease with prolonged, regular use, but this is less likely with prolonged “PRN” (as needed) use. The other three medications take longer — 2 to 4 weeks — to university thesis, be effective, and their side effects normally abate over time. Dr. Brower opined, in response to hypothetical questions which assumed the coursework Commonwealth’s view of how the accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to an emergency erratically or at progress has made us lazy the last minute, are consistent with the effects of the three scheduled drugs. There could be other causes as well (and patients vary in a level help, the severity of their reactions to these and other drugs), but any or all of the scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and pdf, (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the business help scheduled drugs.
5. Defendant’s Statements Concerning Medications. The plaintiff made various statements, shortly after the progress us lazy accident, concerning the a level business coursework medications she was taking. 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 sample ng resume multiple medications; that she opened her purse and showed him “quite a few bottles”; and that he overheard her tell an a level help, EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the EMT to york thesis, whom Alcantara referred, testified (with the aid of his report) that the defendant told him she was on a level Effexor, Topamax, Ativan, and Zyprexa.
3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendant’s “current medications,” percocet and valium “PRN” (i.e., as needed). This was in response to of women in music videos, the question he asks every patient,” What medications are you currently taking?” 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the a level business coursework 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 Topomax (“I take two”) — and that “If I went without them, I’d be a fruit loop.”5 She took her Effexor shortly before leaving the house the in music videos day of the accident. Business! 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. Descriptions of the Defendant’s Affect. Five witnesses testified as to the defendant’s affect, as it bore on the question of possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not “grossly” affected by drugs or alcohol.
2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and went to see if the ng resume defendant needed help. A Level Coursework! She assessed her for head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to of women in music videos essay, follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and business coursework, able to follow instructions and to respond to sample, his questions. 4. Dr. Balser, who saw the defendant at a level business coursework Deaconess Nashoba, noted her to be alert and oriented “times 3? (i.e., oriented to person, place and sample, time). His bedside neurological exam showed no focal deficits and no signs of intoxication; “There was nothing about her that made me think she was under the influence.” He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and a level coursework, Percocet, the resume presence of these substances in a blood or urine sample would have been uninformative).6. 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the business defendant at the scene; that he has known her since she was a little girl; and that in york university, his opinion, she was under the influence of something. He smelled no alcohol and there was” nothing I could put my finger on,” but he did notice that she was unusually subdued, not “bubbly” as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist.
He went to the hospital where she was taken, where she said she had swerved to the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to help, the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendant’s erratic driving the day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant’s vehicle left her lane of travel and university thesis, swerved onto a level business, the sidewalk, into the path of the sample ng resume oncoming bicyclist, for no apparent reason: the pavement was dry; the weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and a level, 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 university, Ayer and a level business coursework help, Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend’s house on the way). George Krusen and york university, 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. As they and the truck approached one another at a curve in the road, the truck swerved into a level business, their lane and eric medcalf resume, beyond, into a level coursework, the dirt by the (wrong) side of the road. It did not slow down, and aid grammar assent, was in their lane for several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and business coursework, avoided a collision by just a foot or two. In her September 6 statement to the police, the technological progress essay defendant stated that the only significant event on coursework her drive from Ayer to Groton was that her sandal “fell off once” in the general area of the medcalf incident described by Krusen and a level help, Curcio; that she might have swerved slightly; but “then that was fine.”
Both men generally described the truck and driver,8 and both, at the request of the Groton police, viewed the truck after the accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the email resume truck in the garage was the one he had seen on Groton School Road. Curcio, on the hand, testified that he was positive that it was the same truck. The time, place, and descriptions of the encounter were such that the jury would have been warranted in a level, concluding that the driver was the defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for a directed finding at the close of the Commonwealth’s case.
At that point, as required, I reviewed “whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the case to technological progress, the … jury, to coursework help, decide the innocence or guilt of the accused.” Commonwealth v. Portrayal In Music! Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the influence of any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to business, warrant submitting the case to email resume, the jury. The defendant has now renewed her motion, requiring me (a) to look again at whether the Commonwealth’s case was sufficient, and (b) “to determine whether the Commonwealth’s position as to a level coursework, proof had deteriorated since it had closed its case.” Commonwealth v. York! Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass.
App. Ct. 317, 323-24 (1987). “[T]he critical inquiry on business coursework help review of the eric medcalf sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. … [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 a level business coursework crime beyond a reasonable doubt.” Thus, to email resume, sustain the denial of a directed verdict, it is a level business coursework, not enough … to find that there was some record evidence, however slight, to support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of york university thesis, each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and Commonwealth v. Doucette, 408 Mass.
454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge’s review of business, motion for essay directed finding). As noted above, in the discussion of the facts, Trooper Alvino’s testimony placed the defendant’s truck on the sidewalk, out of her lane of travel and in the path of an oncoming cyclist, with no apparent explanation to a level business help, be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to ng resume, endanger. Coursework! See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (“evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the university thesis roadway, and nearly struck a traffic island” was sufficient); Commonwealth v. Business Coursework! Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of sample ng resume, people is a relevant factor when considering whether defendant operated vehicle to endanger). Coursework Help! Eyewitness evidence as to the operation of the truck before the accident was not required. Technological Essay! See, e.g., Commonwealth v. A Level Help! Gordon, 389 Mass.
351, 358 (1983). The evidence concerning operating under the has made us lazy influence presented a closer case, but still one presentable to the jury. To succeed on this element, the coursework Commonwealth was required to prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on york the defendant’s “judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies,” diminished her “ability to operate a motor vehicle safely.”10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the defendant’s diminished ability to drive safely, so long as is a level help, was a contributor. “It is enough if the defendant’s capacity to operate a motor vehicle is york thesis, diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to that diminished capacity.” Commonwealth v. Stathopoulos, 401 Mass. A Level Business! 453, 457 (1988).
From the evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. Technological Progress! That her pattern of a level business help, filling the prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. Eric! That the recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the business coursework help indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to have affected her on September 1; 4. That lorazepam, even if consumed the has made us lazy essay night before, would still have affected her the day of the a level business help accident; 5. That the steadily diminishing list of medications given by the plaintiff following the accident — and the omission of the three controlled medications in her statements to the police — indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the evidence of the defendant’s erratic and ng resume, dangerous driving, on two occasions11 separate but close in time and location, and the lack of coursework, any reasonable explanation for either, was evidence of impairment due to intoxication; 7. That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the essay witnesses who evaluated the defendant’s affect after the accident to detect impairment; 8. That the description of the defendant’s affect by Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of 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. Business! Darch, 54 Mass. App.
Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass. York University Thesis! App. Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the coursework controlled medications recently enough to be impaired by them, and it lacked direct evidence of what concentrations she had of any of them. Even the direct evidence of signs of intoxication in the defendant’s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and (by the time she spoke to the police) legally as well; and that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs. This was enough to convict. The question of guilt cannot be left to conjecture or surmise. … However, circumstantial evidence is eric resume, competent to establish guilt beyond a reasonable doubt.
An inference drawn from circumstantial evidence “need only a level coursework be reasonable and possible; it need not be necessary or inescapable.” Moreover, the evidence and the permissible inferences therefrom need only be sufficient to persuade “minds of thesis, ordinary intelligence and a level, sagacity” of the defendant’s guilt. Fact finders are not “required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of email pdf, their experience as to coursework, the natural inclinations of human beings.” To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the aid grammar assent conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Business! Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows:
Motion After Discharge of Jury. If the motion [for a required finding of not guilty] is denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of 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. 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 pdf, the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to a level business coursework help, ensure that the result in every criminal case is consonant with justice. It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the jury’s verdict. “[A] new trial or verdict reduction may be proper even when the evidence can legally support the york university thesis jury’s verdict.” The judge’s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of a level business coursework help, granting a new trial.
The judge’s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to resume pdf, ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge’s own error, or … the interaction of several causes. Commonwealth v. Woodward, 427 Mass. 659, 666-67 (1998). As the trial judge in Woodward put it, a judge’s exercise of the Rule’s authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal.
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 …. The facts, as well as the a level coursework help law, are open to consideration. Commonwealth v. Resume Pdf! Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that “[b]ecause such broad postconviction authority is vested in a level, the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.” Id. at 667, citing Commonwealth v. Keough, 385 Mass. Ian Ker Assent! 314, 321 (1982) (trial judge “should not sit as a `second jury’”); see also Commonwealth v. Carter, 423 Mass. 506, 512 (1996) (judge hearing motion to reduce verdict “is not to play the role of thirteenth juror” or to “second guess the jury”). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to walk the “fine line[s]” between the forms of malice required for the various degrees of homicide.12 427 Mass. at 669. The defendant offers two reasons for a level business coursework help a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to operating to endanger):
1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in of women videos, part, as an argument for “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is business, summarized above and need not be repeated here. It was, as the email pdf defendant characterizes it, “slim,” at least in business, the sense that there was no single piece of evidence of technological, which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the a level strongest single piece of evidence came, not from medicine or from pharmacology, but from physics and accident reconstruction. If one accepts the conclusion of Trooper Alvino that the truck was on the sidewalk at the point of impact — which the ng resume jury were not required but were entitled to do — there might be a variety of explanations for coursework help it, but the only one to be found anywhere in technological progress has made us lazy, the evidence is that of intoxication. If one also accepts the testimony of Krusen and Curcio (including the coursework identification furnished by the latter) — as the email pdf jury were also entitled to do — this showed a chain of events of some duration, likewise consistent with intoxication and a level business help, begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone — though even this is undercut by the defendant’s disclaimer of any problem resulting from it — but it does little to explain a course of reckless driving, which endangered two lives and assent, took a third, and which persisted or was repeated over the course of several minutes and several miles. When combined with evidence of the defendant’s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch’s description of her affect after the accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and business coursework, rational one.
As noted above, the verdict-reduction power conferred by G.L. Email! c. 278, §11 and Rule 25(b)(2) is most often exercised in order to navigate the a level business coursework murky — and notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and fairness, requires a jury’s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is portrayal of women, necessary, in all cases but especially in these. In this case, however, the central issue — whether or not the defendant’s ability to perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. Help! Its determination on the evidence presented in this case was not a simple or an easy task, to eric resume, be sure, but there is no reason to suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and a level business help, incomplete, was nonetheless substantial in its quantity and its overall quality. Trial presentations for both sides were excellent.
I do not think the sample ng resume jury’s verdict represented a miscarriage of justice. The defendant’s final argument — that medications taken as prescribed cannot be the basis of an a level, OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. Progress! c. 90, §§24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendant’s mental illness, or her therapy. The offense is operating under the business influence. What is forbidden is not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances. The OUI and vehicular homicide statutes on 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 resume alcohol or a drug of abuse (which for some drugs is precisely the business help reason a prescription is required). The statute aims to progress has made us lazy essay, 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 a level coursework, sentencing. For the foregoing reasons, the defendant’s Motion for Relief Pursuant to Mass. Resume Pdf! R. Crim. P. 25(b)(2) is a level coursework help, DENIED. Progress Has Made Us Lazy Essay! The date for sentencing remains November 5, 2003 at 3:00 p.m., in a level business help, Lowell. 1. A conviction for felony vehicular homicide requires findings both that the progress us lazy essay defendant was operating under the influence, and that she was operating to endanger(and that her operation caused the death of another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in business, death. Progress Has Made Us Lazy! Both operating under and business, operating to endanger are therefore lesser included offenses in relation to videos, felony vehicular homicide. 2. Business Coursework Help! The week that trial began I held an sample ng resume, evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass.
54 (1994), of Trooper Alvino’s testimony. It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino’s testimony. 3. With respect to diazepam and a level business, lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth’s request, that these are “depressants,” because they appear on the attorney general’s list of york, controlled substances, incorporated by reference into c. Coursework! 94C, §1 and thereby into c. 90, §§24(a) and 24G(a). Oxycodone’s status as a narcotic was established by the testimony of the ian ker essay aid grammar assent Commonwealth’s medical expert, Dr. Brower. 4. Dr.
Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in a level help, the hospital, and that this at first caused her to technological progress essay, feel “out of it” and to sleep a lot, but that “now they have no effect on me, and I’m fine.” In testimony that I excluded (after first asking if the defendant wished to waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that “the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday … and he said it was fine. He said they have no effect on your driving.” 6. Coursework Help! Dr. Balser and eric medcalf resume, the police witnesses were in agreement that the decision whether or not to coursework help, test for intoxication is technological has made essay, a medical one, made by the physician and not under the direction of law enforcement. 7. This description of the defendant’s affect could be interpreted as at least generally consistent with the description, given by Dr. Brower, of the a level business help calming and resume, sedating effects of lorazepam and diazepam. The jury might also have concluded, reasonably, that the business coursework effects of sample, these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol.
8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to a level business coursework, describe beyond a “very dark green with something mixed in”; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking “intense.” 9. The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10. At the of women in music videos defendant’s request, and over a level, the Commonwealth’s energetically pressed objection, I gave the jury a “specific unanimity” instruction, requiring that they agree on york which of the three scheduled medications (if any) had impaired the defendant’s ability to drive. “[W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the coursework jury must unanimously agree on which specific act constitutes the offense charged.” 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 a motor vehicle.
Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcio’s identification of the email pdf truck, and attributed Krusen’s failure to coursework help, identify it to progress essay, the fact that he had been the driver, and therefore, preoccupied. 12. The SJC noted in Woodward, “Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.” 427 Mass. at 667. Business Coursework Help! Eight of these cases (cited in note 12 to eric medcalf, that opinion) were homicides; the coursework other two were drug cases, in which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass. App.
Ct. 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for the defendant. Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth. Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ.
The defendant appeals from the revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license. Ian Ker Essay! Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to a level, sufficient facts to warrant a finding of guilty on a charge of essay aid grammar assent, operating a motor vehicle under a suspended license. The judge continued the case without a finding and business coursework, placed the defendant under the supervision of email resume pdf, a probation officer on terms that, among others, required that he “obey all court orders and coursework help, local, [S]tate and [F]ederal laws” until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from a football game. The stop resulted in new charges being lodged against the defendant in technological progress us lazy, 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 defendant was not in compliance with the terms of his probation because of the new complaint. After a hearing on a level coursework 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 email resume pdf, the day. The judge entered a guilty finding,1 and modified the terms of probation by extending the probationary period to one year from the date of the hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the entry of a guilty finding and a level business coursework help, the order modifying the eric terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from those for which he had received written notification; (2) the defendant’s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to a level business help, support a finding that he had violated the law, because it was uncorroborated; and essay assent, (4) his admission was not the product of voluntary actions, because at the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings.
We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to a level business, the right in order to sample ng resume, avoid being hit by a green sport utility vehicle that had crossed the center line. A Level Coursework Help! Read testified at the hearing that he was unable to see who was driving or how many people were in the vehicle. Sample Ng Resume! He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Read found it parked at a level coursework the side of the road. Read observed the has made us lazy essay defendant standing toward the back of the vehicle, on the driver’s side. Read stopped, exited, and walked toward the defendant. As Read approached, the defendant walked to business coursework, the passenger side of the sample vehicle, sat in a level business coursework help, the passenger seat, and began to pdf, look through the business help glove box. Read asked the defendant where the medcalf resume driver was; the business coursework help defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant’s son-in-law, emerged from the woods by the side of the road, where he apparently had been urinating.
Read asked both the aid grammar assent defendant and Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in the rear of the vehicle. Read determined that the defendant was the owner of the vehicle. Read determined that both the defendant and Crosby were under the influence of alcohol, and placed both in protective custody. Officer Paul Coronella was called and arrived at the scene. The defendant was placed in the rear of Coronella’s police car and Crosby was placed in business coursework, the rear of Read’s police car, both for transportation to the police station.
En route to the station, Crosby had a conversation with Read in york university thesis, which Crosby stated that the defendant was the driver. Business Coursework Help! 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 Crosby that the defendant was the driver. After conducting sobriety tests, which he said the resume defendant failed, Coronella placed the defendant under arrest for operating the motor vehicle on Route 130 while under the influence of intoxicating liquor. A breathalyzer test revealed the defendant to have a blood alcohol reading of .16.
Officer Sean Sullivan, who had been called to inventory the a level business help contents of the defendant’s vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and eric medcalf resume, Crosby “exhibited extreme symptoms of intoxication.” Coronella’s report of the booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella’s and a level business, Read’s reports, after the portrayal of women videos booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella’s and Read’s reports explain that the defendant answered that he drove from his house in business coursework help, Brockton to his son-in-law’s, Crosby’s, home in resume pdf, East Bridgewater. Crosby then drove the defendant’s vehicle to the game. When pressed on business help this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby’s house, but acknowledged that it was “possible” the defendant had made such a comment. The judge did not credit Crosby’s statement, as related by Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Rather, the judge credited the defendant’s admission, as reported by Coronella and Read, that he had driven from his house to essay aid grammar assent, Crosby’s house, the first leg of the trip to the football game.4. On these facts, the a level business coursework defendant raises several issues implicating due process; we find no merit to his contentions and we affirm.
Written Notification. The defendant first argues that the written notice of surrender referenced only the two charges for which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in resume, the day, when he drove from his home to Crosby’s home under a suspended license. The issue was first raised in the defendant’s second motion for reconsideration, which was denied by business coursework the judge who had found a probation violation. We agree with the ng resume defendant that the written notice was limited on its face to the two charges filed in connection with the incident that occurred on Route 130, and that the notice of violation of business coursework help, probation did not include mention of his operating the motor vehicle on a public way earlier in the day.5 The Commonwealth appears to concede that, because of lack of notice, the earlier operation cannot form the basis of the eric instant revocation. We disagree.6. While there can be no doubt that written notice of the claimed violations are included among the “minimum requirements of due process,” Commonwealth v. Durling, 407 Mass. Coursework Help! 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an email, inflexible concept. Coursework Help! Ibid. Flexibility is important both to ian ker essay assent, insure the offender the opportunity inherent in business, the grant of conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of email resume, 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 Level Business Coursework! A probation revocation is not a criminal prosecution. Portrayal In Music Videos Essay! Commonwealth v. Durling, 407 Mass. at business 112, 551 N.E.2d 1193.
In this case, the written notice did not specifically state the basis upon which the judge based the revocation. The defendant’s admission, however, of having driven the vehicle earlier in the day was included in the police reports that were generated in york university thesis, relation to the charges listed on the notice of business help, probation violation. In any event, assuming that the failure to specifically enumerate the misconduct on eric medcalf resume the face of the notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the a level business coursework help actions of defense counsel in introducing the issue at thesis the inception of the a level business coursework help hearing, and in resume, vigorously cross-examining the officer on the issue, amply support the business help conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the email resume pdf defendant’s principal concern was with the then-pending operating under the a level coursework influence charge.
With respect to resume, the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation. Help! After discussion about resume pdf, a possible disposition, counsel told the judge the following: “There is a level business help, a second matter of operating after a suspended license. And there are two incidents of operation, one of which I understand my client is portrayal of women essay, accused of admitting that he did. Coursework Help! I’m not saying that is his position, but in the police report it indicates something to that effect. “If we could just go forward with regard to that issue and resume, not stipulate to the OUI, it would still be a technical violation.” (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in coursework, vigorous cross-examination of the officer with regard to the defendant’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 defendant might also have told him that a family member, rather than the defendant, drove the car to Crosby’s house. Counsel was amply prepared at the start of the hearing to consider the issue of the defendant’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 medcalf resume, notice, and this failure to show prejudice is fatal to his claim of error.
See Delisle v. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986). Compare Commonwealth v. Streeter, 50 Mass.App.Ct.
128, 131-132, 735 N.E.2d 403 (2000). Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the business statement was made either prior to resume, his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and coursework, Fourteenth Amendments to the United States Constitution and art. 12 of the has made us lazy Massachusetts Declaration of Rights and therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to form the basis of the probation surrender, since it lacked corroborative evidence and was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant’s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the basis of the violation. The record shows that the conversation reported by business Coronella, in essay, which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read’s testimony at the hearing supports this version of a level help, events.8. Moreover, even were we to agree that the ng resume defendant’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 business, violation of the Fourth Amendment, the Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by pdf a defendant were properly suppressed at trial as having been obtained in violation of the defendant’s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the defendant and Crosby for coursework reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the influence, the exclusion at york thesis a probation revocation hearing of the defendant’s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Business Coursework Help! Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and ng resume, Fourteenth Amendment voluntariness.
Simon next argues that the statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendant’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. Business! In the context of a criminal trial, where evidence of intoxication has been presented, and of women in music videos essay, the voluntariness of business, statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an affirmative finding on the voluntariness of those admissions under the york university thesis Fifth and a level, Fourteenth Amendments before a jury is allowed to consider them.
See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. Technological Progress Essay! 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. A Level Help! 375, 383, 649 N.E.2d 1106 (1995) (“special care is taken to review the issue of eric medcalf resume, voluntariness where the defendant claims to a level business help, have been under the influence of drugs or alcohol”). Such special care with regard to intoxication is necessary; the United States Supreme Court has noted, “as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the ian ker essay defendant a more significant factor in the `voluntariness’ calculus.” Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of business help, Fifth and email pdf, Fourteenth Amendment due process at a probation revocation hearing, we find instructive the business help reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner’s probationary status.
See United States v. Gravina, 906 F.Supp. 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to police harassment when the defendant was interviewed or when he made the resume statement after being read his Miranda rights. Compare United States v. Gravina, supra at business coursework help 54, quoting from United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (“an element of eric, constancy should be present in the type of harassment necessary to a level business help, invoke the exclusionary rule…. [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present”). While the police officers were aware of eric medcalf resume, Simon’s probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. See also note 9, supra.
Further, the police had already placed the defendant under arrest for driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on that offense, rather than for the purpose of business coursework, eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (“The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of pdf, probation is generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from such proceedings is likely to have only a level a marginal additional deterrent effect on eric resume illegal police misconduct”). In addition, we note that the a level coursework United States Supreme Court has drawn no distinction in its analysis of the “voluntary” waiver of the personal right against self-incrimination protected by university the Miranda warnings on the one hand, and the due process-based “voluntariness” of a statement protected by the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at a level coursework 169-170, 107 S.Ct. Sample! 515.
Similarly, the a level business help Supreme Court “cautioned against in music essay expanding `currently applicable exclusionary rules,’” 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. “In Federal law and in a level business help, most jurisdictions, the exclusionary rule does not apply as a matter of course to eric medcalf resume, probation revocation proceedings because the `application of the exclusionary rule is business help, restricted to those areas where its remedial objectives are thought most efficaciously served.’ 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).” Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. “`Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.’ Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Accordingly, the State has an sample, overwhelming interest in being able to coursework help, return an individual to imprisonment without the burden of a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of his [or her probation].’ Morrissey [v. Brewer, 408 U.S.
471,] 483, 92 S.Ct. , 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.” Commonwealth v. Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the technological has made essay defendant’s statement inadmissible, even were we to a level business coursework, determine that the statement had been given involuntarily, when, as here, there is no evidence that the statement was the product of york, 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’s home that morning, is insufficiently reliable, first because it is a level business, unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in the hearing. Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the “full panoply of constitutional protections,” due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Essay Aid Grammar! Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered. See id. at 113-117, 551 N.E.2d 1193. Even the business right of confrontation may be denied if the email “hearing officer specifically finds good cause for not allowing confrontation.” Gagnon v. Coursework Help! Scarpelli, 411 U.S. University! 778, 786, 93 S.Ct.
1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of providing an accurate determination as to business, whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant’s statement. Sample Ng Resume! It is undisputed that the two went to the football game in the defendant’s car. A Level Business! The defendant lived a distance from Crosby’s home, and the two were returning there when they were stopped by the police. No other explanation was offered of how the ian ker essay aid grammar assent defendant and his vehicle got from his home to Crosby’s.11 The cases cited by the defendant in his brief, Commonwealth v. Business! Forde, 392 Mass. 453, 457, 466 N.E.2d 510 (1984), and portrayal of women in music, Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to corroborate the admission. As there was corroboration in 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 a level business coursework help defendant admitted to driving earlier in the day, and that he had made a note of it in his police report. Read was present at the hearing and subject to cross-examination. The statement was an admission against interest made by the defendant to police officers at a time when the officers were investigating him for another alleged crime, operating under the influence. The defendant, though present in court, chose to remain silent. Declarations against penal interest are admissible for the truth of the matters asserted.
See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at 516 (7th ed.1999). The hearsay was both credible and reliable. Order revoking probation affirmed. 1. See, e.g., Commonwealth v. Villalobos, 437 Mass. 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to email resume pdf, the continuance, he may be found guilty and sentenced). 2. In accordance with Rule 9 of the District Court Rules for business coursework Probation Violation Proceedings (West 2001), the proceedings, which resulted in ng resume, the imposition of a guilty finding and business help, the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Eric! Maggio, 414 Mass. A Level Help! 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Officer Read at the surrender hearing.
Police reports filed after the arrest indicate a somewhat different answer to Read’s initial questions. Any variance is not material to technological progress has made essay, our decision. 4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby’s statement. In his written findings, the judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the finding included “Mashpee police reports”; “Statement of Kevin Crosby”; “Mashpee P.O. John Read”; “Breath test on D.” Given the written finding that revocation was based on “Operating motor vehicle while suspended,” and the judge’s unequivocal statement that he was not relying on Crosby’s statement, we adopt the view that the a level coursework help revocation was based on email the defendant’s admission that he had been operating the a level coursework help vehicle earlier that day.
Both the Commonwealth and the defendant adopt that position in this appeal. 5. With respect to the alleged violations, the notice stated in full: “You are hereby notified of the following alleged violation(s) of the probation order that was issued to ian ker assent, 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. A Level! after susp. lic.” 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby’s statement that the defendant was driving, there is ample additional circumstantial evidence to has made us lazy essay, tie the defendant to the operation of the vehicle at the time of the stop. Having determined that revocation was proper on a level business help the grounds cited by resume pdf the judge, we need not reach the Commonwealth’s arguments in this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to coursework, the notice of surrender. 8. Coronella’s report states in pertinent part: “During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the test and the results were as follows…. [The defendant] was again asked how he got to the … game. He stated that he drove from his house in york university, Brockton to Crosby home in a level business coursework help, East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.” Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station.
9. The United States District Court for Massachusetts explained: (1) the resume 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 a level business, exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is pdf, aware of the target’s probationary status, but not where a police officer is business coursework, unaware of sample ng resume, that status; and a level, (4) the Fourth Circuit “stands alone” in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed. 824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer’s knowledge of a probationer’s status would compel exclusion of evidence obtained. 11.
Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby’s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to Crosby’s. Any determination of the has made us lazy essay weight and credibility of Read’s testimony was for the judge, and the contradiction was not so egregious as to cause us to conclude that the judge committed plain error. See Commonwealth v. Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the business 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. Cheryl A. BAZINET.
Appeals Court of Massachusetts. James M. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for sample the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in the town of a level, Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and detected an technological has made, odor of alcohol. Consequently, the trooper, although he had made no observations of the a level business coursework manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of ng resume, field sobriety tests. Coursework! When Bazinet stepped out of the vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by in music essay ?a strong odor of an intoxicating beverage on a level business coursework help her breath as she spoke.? Bazinet consented to york university thesis, a breath test which revealed an business, alcohol level greater than .08%, and she was charged with operating under the influence. See G.L. Sample Ng Resume! c. 90, ? 24(1)( a )(1).
Before trial, Bazinet moved to dismiss the complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the coursework District Court reported the case for an answer to two questions of law he said arose frequently in the District Court. Technological Has Made! See Mass.R.Crim.P. 34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P.
5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991). The questions are these: ?1. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the operator is OUI, to further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an operator for further testing? ?2. Is the a level business Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. July 21, 2007 through the sample Division Commander’s Order (06-DFS,056),[ constitutionally valid??
The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. A Level Business Coursework! Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in charge of a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the decision in Murphy requires an affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at essay 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the operator … is committing … an a level business coursework help, OUI violation.? In Murphy, the troop commander’s order, like the troop commander’s order in this case, stated that further screening after the initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.?
Murphy, supra at 321, 910 N.E.2d 281. The court said that the resume pdf ?odor of alcohol? was one of the ?clues of impaired operation? for business coursework which the screening officers were to check and which, if observed, would provide a basis for pdf further screening and investigation. A Level Coursework! Id. at 320, 328, 910 N.E.2d 281.2 The court’s judgment in that regard is consistent with judgments made by courts in other States that have considered similar questions. See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to essay assent, a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist’s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of a level business coursework, alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No.
2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the influence?). Turning to question two, the pdf opinion in a level business, Murphy did not consider the Division Commander’s Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by operational instructions contained in a letter from the troop commander to the officer in charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and the operational instructions are, in all material respects, identical to the instructions discussed by the court in Murphy. As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional. Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to portrayal in music videos essay, all observed violations, thus reducing further the kind of discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass. A Level Business! 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass.
343, 347, 547 N.E.2d 1134 (1989). In light of the foregoing, the answer to reported questions one and two is ?yes.? 1. This appears to be a typographical error. The Division Commander’s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court’s complete list of ?clues of impaired operation? was ?the condition of the eric medcalf eyes of the operator, the a level odor of alcohol, the speech of the technological has made us lazy essay operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Later in the opinion, the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on business coursework the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission.
As a consequence of a motor vehicle accident on 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 email resume, (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Business Coursework! Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of eric medcalf, (1) operating a motor vehicle while under the influence of help, intoxicating liquor (OUI), G. L. c. Of Women In Music Videos Essay! 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). On the day following the rendition of the jury’s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of a level coursework, OUI, fourth offense, G. Technological Progress Us Lazy! L. c. 90, § 24(1)(a)(1), sixth par.
On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver’s license for prior conviction of OUI, G. L. c. 90, § 23. Upon the convictions for OUI fourth, the a level judge sentenced the defendant to four and thesis, one-half to five years’ confinement at State prison; upon the conviction for operation after suspension or revocation by a level coursework help reason of resume, prior OUI conviction, the judge imposed a sentence of two and a level business coursework help, one-half years’ confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for sample ng resume determination of the exposure of members of the jury to prejudicial publicity during the course of the trial; and (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences. For the following reasons, we reject the a level business coursework help defendant’s appellate contentions and affirm the convictions and email pdf, the sentences. Factual background. Business Coursework! The evidence permitted the jury to find the following facts. Sample Ng Resume! On the a level help afternoon of January 26, 2008, the assent defendant consumed four or five beers at a level help her home in email resume, Lynn between 2:45 P. M. and 6:00 P. M. At about 6:00 P. M., she left the business house in order to purchase take-home food from a delicatessen in the city. She took with her an additional can of beer, opened it, and put it in her handbag in email, the car. At a major intersection in Lynn and after she had taken a drink from the a level business coursework 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 york thesis restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches.
A samaritan offered immediate assistance. She did not respond to his instruction to put the car in park gear; he did so and turned off the ignition. He noticed that her speech was slow and that an odor of business, alcohol was in her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and eric medcalf resume, from the interior of the a level business coursework automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the automobile. He formed the resume pdf opinion that she had been driving under the influence of business coursework help, alcohol. At trial, after two days of empanelment and testimony, the ian ker aid grammar Lynn Item newspaper published a morning article about the case. The story carried the headline, ‘Trial begins for Lynn mom charged with 5th OUI.’ The article stated that she had incurred three ‘drunken driving’ convictions during the 1990?s and a fourth in a level business, 2004. The article stated also that she ‘blew a.15 alcohol blood level when arrested’ for progress us lazy the current incident. At the a level business help beginning of the third day of trial, all counsel and the judge discussed the sample appearance of the article.
When the jury entered the courtroom, the judge addressed the a level business coursework following question to them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in medcalf resume, any way as a fair and impartial juror? Nobody’s raising their hand.’ He added a second question. ‘Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is any–anything you’ve heard at all, even the tiniest thing. Okay, nobody is raising their hand. Okay.
All right, so we will resume with the trial.’ Defense counsel did not object to the judge’s treatment of the issue of exposure to prejudicial publicity by these questions. Later that day, after the close of the business coursework evidence and in the course of final instructions to the jury, the judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of essay aid grammar assent, testimony and a level business help, exhibits received in ian ker aid grammar, the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the jury verdicts, the finding of the bench trial, and the submission of the plea of guilty to operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the a level coursework help bench. His comments included the following. ‘This is a sad case. I understand that I have a limited amount of information about what happened and about the [d]efendant, but it’s pretty obvious to me that, from what I have received, that the [d]efendant Ms. King is probably a very nice person and medcalf resume, she probably–it’s not hard to see that she’s probably had a difficult life; I am sensitive to these things. But the sentence I’m going to impose is necessary, in my view.’
The judge then specified the sentence for each offense. At the conclusion of his announcement of the a level business coursework help respective sentences, he made the following one-sentence statement. ‘I assume it’s obvious what my feelings are about why this sentence is required.’ The remark brought no objection. On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the departure from the guidelines, he wrote, ‘Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.’ Newspaper article.
On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to technological progress has made us lazy essay, the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant’s prior OUI convictions. Because the defendant lodged no objection to business help, the judge’s preventive or curative efforts at the time of trial, we review this argument under the standard of substantial risk of a miscarriage of justice. We review the case as a whole and university thesis, ask (1) whether an coursework help, error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel’s failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass.
675, 687-688 (2002). In this instance, we find no error in the judge’s management of the issue. The defendant relies upon university, the case of Commonwealth v. A Level Business! 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. ‘If the email pdf judge finds that the help material raises a serious question of eric medcalf resume, possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror’s exposure to the material and a level coursework, its effects on the juror’s ability to york, render an impartial verdict’ (emphasis supplied).
The thrust of the defendant’s argument here is that the judge had a duty, not an option, to a level business coursework, conduct individual voir dire questioning of the jurors. As the resume pdf governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the judge has no further duty to carry out individual questioning. Consequently, the judge here complied with the standard of the Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judge’s continuation into individual interrogation of jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to search for it during the course of a trial. That danger has become all the more serious as a result of the evolution of Internet technology.
Both doctrinally and help, practically the judge committed no error in eric resume, these circumstances. 1. Sentencing. The defendant argues that the judge’s reference to ‘feelings’ about the imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by case law, particularly the business case of of women in music essay, Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, ‘A trial judge must be ever vigilant to make certain that his personal and business, private beliefs do not interfere with his judicial role and transform it from that of impartial arbiter.’ Id. at 401. The defendant characterizes the reference to ‘feelings’ as a forbidden indulgence of ‘personal and sample ng resume, private beliefs.’ The judge’s fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in a level help, any of the decisions cited by the Mills discussion. We view the reference to ‘feelings’ in the setting of the judge’s entire remarks about sentencing. In that light, it reflects reasons and portrayal of women videos, not emotion. He commented that he viewed the business case as a ‘sad’ one.
Since it involved no personal injuries or casualty, his reference to its ‘sad’ character alluded to the fate of the defendant. Email Pdf! He observed that she may well have had a hard life. He observed also that he was ‘sensitive’ to a level business help, her circumstances. At the same time, he found her behavior over the decade and one-half covered by her four OUI convictions to constitute a serious threat to public safety. Ng Resume! He justifiably viewed her record as ‘egregious.’ She embodied a danger to the lives of help, innocent travelers and pedestrians on and near the roadways.
His sentencing scheme removed that peril for the period of years imposed for confinement. The sentencing fell within the bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the defendant’s argument is that the portrayal of women in music videos judge had a duty to a level business coursework help, 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 resume risk of a level coursework, juror research.
The judge’s choice created no error of law or abuse of technological has made essay, discretion. Mass DUI OUI “Not Public Way” – Observed obviously intoxicated and urinating in public immediately after driving onto a pier in a level business coursework help, the Charlestown section of Boston, the pdf defendant, Gregory Belliveau, was convicted of a level business help, 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. Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and progress has made, urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the coursework defendant, Gregory Belliveau, was convicted of york university, operating a motor vehicle while under the influence of coursework, alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. Of Women! 28, ?? 1, 2. On appeal, he argues that the business help pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in eric medcalf, sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard. The pier is surrounded on a level all sides by water and accessible by automobile only by way of public streets.1 Those streets end at technological progress has made essay Terry Ring Way.
As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.? Entry to the pier is then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. According to business help, the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about 5:30 p.m. on technological has made May 19, 2004, Steven Spinetto, a city of a level business help, Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to sample ng resume, 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’s vehicle or vehicles involved with staffing or operations of the business help sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on eric medcalf would had to have gone across the wooden boards into the section down on the pier; there’s no motor vehicles at all, it’s a pedestrian pier,? and a level business, subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there’s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the eric medcalf pier where the truck had stopped, and he observed the defendant standing next to a level business help, the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the medcalf resume defendant from coursework, driving, but the sample defendant got back into the truck and attempted to leave the a level business coursework help scene. Aid Grammar Assent! With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the truck’s doors and by closing the gates to the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant.
Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and talking to the defendant, the police placed the a level coursework defendant under arrest. 2. Public way. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of has made, park commissioners or body having like powers.? G.L. c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. A Level Business! 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct.
1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is pdf, 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. A Level! Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996). Portrayal! In making that determination, we look to see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is open for a level help travel….? Commonwealth v. York! Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the business help usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16.
See Commonwealth v. Stoddard, 74 Mass.App.Ct. 179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Technological Essay! Indicia that the a level coursework help way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at ian ker essay aid grammar 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Business Coursework! Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of essay, a gate severely restricting general access to the campground is of great significance?). Deeds are also relevant considerations. See Commonwealth v. Hazelton, 11 Mass.App.Ct. Business! 899, 900, 413 N.E.2d 1144 (1980).
The focal point of the case was whether Pier 4 was a public way. To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for ian ker essay aid grammar assent the property ?to provide access and business, 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 sample ng resume the pier as there are almost every evening,? and a level, testimony regarding the presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to of women in music videos, the youth of a level coursework help, Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to authorized vehicles. The Commonwealth’s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question.
There was ample evidence that the pier was public and a way and paved and ng resume, 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. A Level Coursework! George, 406 Mass. at 638, 550 N.E.2d 138, a case in resume pdf, which the defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the help 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 york university thesis, George reversed the coursework conviction because the portrayal of women essay drinking and driving occurred on a level business help 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 essay aid grammar, could be opened by the public, as it was by the defendant. Coursework! 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 technological progress essay, authorized vehicles, the sign appearing in 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 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 business help, physical circumstances did not suggest a public way).
The deed also expressly provided for vehicular access to the public. The presence of york, a public water shuttle dock and a level business coursework help, a sailing center open to resume, Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at coursework 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 york university thesis, alcohol not only on the pier, but also on business coursework help the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the assent 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. A Level! The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public.
Proof of eric resume, 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. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the a level coursework necessary proof of all three elements of the offense: the public way, the driving, and the impairment. Moreover, the judge’s instruction to the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on email public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by some level of government is what we call a public way. This includes, for a level instance, interstate and state highways, as well as municipal streets and york thesis, roads.?
Thus, the instructions on a level business coursework public way encompassed the public roads on york thesis which the coursework defendant testified that he drove to arrive at the pier. 3. Remaining issues. We need not belabor the remaining issues. Sample Ng Resume! First, trial counsel’s failure to a level, object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Portrayal Of Women Videos! Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel’s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to help, take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the resume pdf defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant’s argument that the judge considered improper factors in sentencing is without merit.
The defendant contends that Spinetto should not have been given the a level help opportunity to give ?a community impact statement,? speaking about his loss of limb after being run over by a drunk driver over thirty years prior, and making a plea for the judge to essay, keep the defendant from injuring other people. Although the judge briefly mentioned Spinetto’s community impact statement in her sentencing remarks, it is clear that the defendant was appropriately sentenced based on his prior record and business coursework help, that the technological progress judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and the judge’s proper instructions permitted the jury to find that the defendant had driven under the influence of alcohol on the public roads leading to the pier. Coursework Help! Ante at essay aid grammar 835, 927 N.E.2d at 500. A Level Business! That analysis freed us from the need to resolve the ?close question? whether the pier constituted ?any way or … any place to york thesis, which the coursework help public has a right of access, or … any way or … any place to which members of the public have access as invitees or licensees….? G.L. Portrayal Of Women! 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 a level coursework help, the current statutory construction and the need for examination of the underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in 1961, see St.1961, c. 347, to portrayal of women, provide the following: ?Whoever, upon a level business help, any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle … while. under the influence of intoxicating liquor … shall be punished….? 3. The opinion of the court describes the location, the sample ng resume access roads, the gate, and a level business help, signage related to the pier. Ante at 833-835, 927 N.E.2d at 499-501. Four important and independent circumstances of the ng resume use of the pier emerge as well from the a level business evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to a terminal at the edge of the thesis pier from which they could walk across it. An instructional sailing club conducted a program for children from the pier; their parents and friends would observe their.
races from it. A Level Coursework! The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and endangered by the defendant’s driving were pedestrians. Additionally, the technological has made evidence permitted the help jury to eric medcalf resume, make the a level following findings about the defendant’s conduct. He drove his pickup truck at a high speed onto the pier; got out and urinated onto one of the benches; reentered the sample truck and backed into another bench; and a level business help, then backed up further so as to collide with a storage shed used by the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law. A sensible and direct application of the words of the york thesis statute to the circumstances of the pier and the actions of the defendant would appear to coursework, make him punishable.
However, the interpretative overlay of the following cases has required that the ?way? or ?place? in resume, question be one of public ?access? by a level coursework help ?motor vehicle.? Commonwealth v. George, 406 Mass. Technological Progress Has Made Us Lazy! 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the conviction of the defendant, not on a level business 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. Progress! 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for the protection of travellers on highways,? and therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. 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. Business Help! Clancy, 261 Mass. 345, 348, 158 N.E.
758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon ways?). In 1928, the Legislature rewrote the entire provision. Its opening main clause now declared, ?Whoever upon any way, or in any place to which the public has a right of access, operates a motor vehicle … while under the influence of medcalf, intoxicating liquor … shall be punished …? (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 a level coursework, 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 thesis site of operating under the influence. Despite the added term, the court in Commonwealth v. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on help a private way connecting two public ways was not operation upon the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over it, even though the owner of the private way had permitted use of it by members of the public as business invitees or business licensees to aid grammar, a nearby restaurant and a market building. The court reasoned that the canon of business, strict construction of penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the public as business invitees or licensees.
Ibid. Three years later the Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347. In one subsequent case, Commonwealth v. Eric Medcalf Resume! Connolly, 394 Mass.
169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on a level the meaning of sample, ?under the influence?), the court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). In another it determined that the defendant’s operation of a level business coursework help, his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owner’s permission did not involve a ?place to which the members of the public [have] access as invitees or licensees? because the owner had never consented to essay aid grammar assent, 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 coursework help reach? of the act, id. at 203, 539 N.E.2d 533, but added that the portrayal in music canon of strict construction of penal legislation against the Commonwealth applied to its terms. Id. at 205, 539 N.E.2d 533. ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid.
In its last assessment of this portion of the act in 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the 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. Business Coursework Help! Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. 4. The issue.
None of the cases appears to have addressed the applicability of the statute to places to which members of the resume public have access as pedestrian invitees or licensees. For the a level help 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 ian ker essay assent, me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. 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). Business Coursework Help! The language extends to impaired operation ?upon any way or in any place? accessible to members of the public as invitees or licensees.
The repeated use of the article ?any? with no limiting adjectives or phrases attached to ng resume, the words ?right of help, access? and essay aid grammar assent, ?invitees and licensees? denotes the business coursework generality of the intended ?place.? The Legislature did not confine the roles of invitees or licensees to persons conveyed by motor vehicles. It. chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out that the act’s penal character requires strict interpretation. See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Of Women In Music Videos! Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute’s meaning?); Commonwealth v. Callahan, 405 Mass. at business coursework help 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in york, the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the law’s limitation to members of the coursework 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 ng resume, available and sensible interpretation is to be rejected in favor of a level business help, a fanciful or perverse one.? Commonwealth v. Portrayal Of Women! Roucoulet, 413 Mass. A Level Business! 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Ian Ker Essay Aid Grammar! Tata, 28 Mass.App.Ct. A Level! 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in ian ker essay assent, 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. A Level Business Coursework! Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. 90, ? 24G [ a ], against the defendant’s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature’s addition of the word ?place? in 1928 meant something more than a ?way.?
Both the sample ng resume statutory definition of ?way,? G.L. c. 90, ? 1, supra at note 4, and business help, the general ordinary meaning depict an artery supporting some degree of traffic or movement. By contrast, a ?place? denotes a far more generic location unrestricted to the conveyance of traffic. If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Has Made Us Lazy Essay! Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the a level business term ?place? by the Legislature expanded the diameter of the aid grammar assent statute beyond the focus of the help early decisions on protection of highway travellers. Other standards of interpretation forbid courts to of women videos essay, add language to the terms chosen by the Legislature.
Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design?). A Level Business Help! See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the thesis phrase ?by motor vehicle? to the Legislature’s words ?any place to which the public has a right of access, … or … any place to a level business coursework, which members of the public have access as invitees or licensees.?
That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways.
It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for protection against impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the act. It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and status of his endangered or injured victim. Solutions. A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the statute. The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the ng resume momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon a level coursework, the operator’s use of public roads adjoining the eric medcalf place in which the impaired driving injured or endangered pedestrians, as occurred here.
Within the judiciary the Supreme Judicial Court could reconsider the a level help present construction said by the court in George to have evolved without discussion. Finally, and perhaps ideally, the Legislature could further amend the york university statute to extend its reach unmistakably to ?any place in which the public has a right of access, or … any place to business coursework help, which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the progress essay 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 coursework, the Charlestown Pier. He then drove in traffic on public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to ?race up and pass? one car. Email Pdf! He then drove up Terry Ring Way to a closed double swinging gate. As the a level business defendant moved for a required finding of ian ker essay assent, not guilty at the close of the a level business help Commonwealth’s case on the public way question, we do not consider the sample ng resume defendant’s testimony in coursework help, determining whether that motion should have been allowed. 3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the email resume baseball field was not, as a matter of law, a public way.? Id. at 636, 550 N.E.2d 138. 4. The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on a level coursework the field and overturned the car while trying to leave the field. In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the thesis defendant was driving under the influence on coursework help public roads prior to his arrival at the pier.
5. We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge’s instructions and the proof offered adequately presented the issue for the jury’s consideration. 6. The passenger left the car soon after they were confronted at ian ker essay the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination. 8. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendant’s prior record, having considered the business mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the medcalf resume prosecutor in the case and the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988).
Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. That limitation, however, does not bar the court from useful observations in dicta about the continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the a level help then existing rule imposing a duty to eric resume, pay rent upon a nonresidential tenant independently of the landlord’s breach of covenants in the lease; and the subsequent decision of the a level business help Supreme Judicial Court overruling that doctrine, Wesson v. Sample Ng Resume! 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 a level business help, cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of resume, videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of that view by the Supreme Judicial Court, S.C., 442 Mass. 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. 25, ? 3, and by St.2003, c. 28, ? 1. 4. A Level Business Coursework! In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the videos Appeals Court has consulted the definition of that term by G.L. A Level! 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 york university suspect was driving under ?the usual indicia of a level business help, accessibility to the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at 833, 927 N.E.2d at 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Progress! Our most extensive discussion of the locus required for coursework conviction of technological us lazy essay, operating under the influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and which was indisputably open for travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at business coursework 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Ng Resume! Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY.
Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and help, bound volumes of the Official Reports. This preliminary material will be removed from the resume pdf Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in coursework, the Superior Court Department on email January 26, 2005.
The case was tried before Howard J. Whitehead, J. James P. Business! McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in technological essay, violation of G.L. c. 90, § 24(1)(a)(1).
1 His principal issue focuses on the meaning of “operation” under that statute. We affirm. 1. Operation of the motor vehicle. A Level Coursework! A. Operation as matter of law. At trial, the portrayal in music videos Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and help, was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the engine on. There was no evidence from which the aid grammar 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 evidence of operation was insufficient as matter of a level business help, law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged. 2 The issue whether a defendant who places the key in the ignition and eric medcalf, turns the electricity on a level business without starting the engine may be found to be “operating” the vehicle for eric medcalf purposes of G.L. c. 90, § 24, is one of first impression in Massachusetts.
3. To define “operation” we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in a level business coursework help, the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation). Under the Uski definition, turning the key in resume, the ignition to the “on” setting could be found to be part of a sequence that would set the vehicle’s engine in a level coursework help, motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the ng resume Massachusetts OUI statute. Business! The purpose of G.L. c. 90, § 24, is to “protect the public from intoxicated drivers,” Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf.
State v. Haight, 279 Conn. York! 546, 554-555 (2006), quoting from State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated…”). Even an intoxicated person who is sleeping behind the wheel is dangerous because “that person may awaken and coursework help, decide to drive while still under the influence.” State v. Kelton, 168 Vt. 629, 630 (1998). Ian Ker! 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of business coursework, law, the evidence that the defendant, who was found in the passenger’s seat, turned the eric ignition key–an act which the jury could have found to be the first step in a sequence to set in coursework, motion the motive power of the vehicle–was sufficient to permit the jury to conclude that he “operated” the motor vehicle.
See also State v. Haight, 279 Conn. at 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of essay aid grammar assent, operation similar to the Uski definition because this is an act that is business coursework, part of sample, a sequence that will “set in motion the a level motive power of the vehicle”) (citation omitted). 7, 8. We are unpersuaded by the defendant’s interpretation of technological progress, Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an help, engine be engaged and as meaning that turning the progress us lazy key to the “on” position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to a position that does not start the car would only draw power from the battery and thus neither starts the engine nor makes use of the a level business help power provided by its engine. Progress Us Lazy! Even if we assume, arguendo, that the defendant is correct and that turning the key to the “on” position does not engage the a level business coursework help 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 thesis meaning of G.L. c. 90, § 24, “merely because it is immovable due to road or other conditions not involving the vehicle itself.” Id. at 184. Applying the Uski definition to the facts before it, the court concluded that “the defendant… operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine.” Id. at 183-184.
In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the jury instructions were inappropriate. The judge’s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant’s claim, the business help instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver’s seat with a key turned in the ignition compelled a finding of operation. Ian Ker Aid Grammar Assent! Contrast Commonwealth v. A Level Business! Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. B. Sufficiency of the evidence. The defendant, who does not challenge being under the influence of intoxicating liquor 12 or the fact that the vehicle was on a public way, 13 argues on appeal that the Commonwealth failed to present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. c. 90, § 24(1)(a)(1).
More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the of women in music videos essay key in a level help, the ignition of the car and turned the key. We consider “whether the evidence, in eric medcalf resume, its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient… to permit the jury to infer the existence of the essential elements of the crime charged…” beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. Business Coursework Help! 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 university, the driver’s seat “slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.” The defendant’s feet were “right in front of him.” The vehicle’s dashboard was illuminated. A Level Coursework Help! The key was in the ignition and sample, had been turned to business help, the “on” position so that the “energy to the vehicle was on,” but the university thesis engine itself was off and “[t]he vehicle was not running.” The police officer had to “physically turn the ignition back” in business, order to remove the key. The police did not observe anyone else in the van at the time of arrest. Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the driver’s seat of the vehicle, put a key in the ignition and turned it to the “on” position. See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (“Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI”), citing Commonwealth v. Petersen, 67 Mass.App.Ct.
49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to technological progress has made essay, two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and the arresting officer that the defendant, upon being awakened by the police officer, told the a level business coursework officer that the officer did not have the vehicle’s keys. The defendant testified that, after he moved to the driver’s seat and began eating his food, he did not remember what happened until the ian ker essay 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 not guilty. See Commonwealth v. Coursework! Pike, 430 Mass.
317, 323-324 (1999). Second, the defendant points to the testimony of his friend that the friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the essay aid grammar jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into the driver’s seat, picked up the a level business coursework help key and put it in the ignition when he moved to the driver’s seat. 2. Other issues. A. Aid Grammar! Though he did not object below, the a level business help defendant argues that the prosecutor misstated the york university thesis evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree. Business Coursework! The prosecutor’s argument disputing the defendant’s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel’s argument that implied such a conspiracy.
See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). Resume! We also conclude that the business help prosecutor’s statement that the defense witness’s testimony corroborated the officers’ testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was “improperly muzzled” at trial because he was not permitted to in music videos essay, testify that he intended to sleep overnight in coursework help, the van so that he could go to court in Gloucester the next day. The defendant, however, was permitted to elicit testimony from the medcalf resume defendant’s friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorney’s strategic advice not to help, testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of resume, prior convictions of business coursework, driving under the portrayal of women in music videos essay influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the defendant moved to replace his attorney, and the judge denied the a level business help motion.
The record reflects that as soon as the judge became aware of a conflict between the university thesis defendant and his counsel, the a level coursework help defendant was provided an opportunity to explain his reasons for wanting to remove his attorney. The judge did not abuse his discretion in denying the defendant’s motion where (1) this trial counsel was the ng resume defendant’s third attorney; (2) the case was two years old; (3) although the a level defendant was upset with his attorney for arguing a motion for a new trial on his behalf, but without the defendant’s presence, the defendant’s presence would not have affected the outcome of that motion for a new trial; and (4) the defendant merely complained of something that any lawyer who represented him “who had any competence at all would do.” See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the judge abused his discretion by refusing to remove two jurors for cause. We disagree. With respect to progress, each of the complained-of jurors, the judge dispelled any concerns about the juror’s bias through follow-up questioning, in which the jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officer’s testimony was challenged. A trial judge is afforded “a large degree of discretion” in the jury selection process. Commonwealth v. Coursework Help! Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). Portrayal Of Women In Music Essay! “Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the a level judge abused his discretion by empanelling the juror unless juror prejudice is eric medcalf resume, manifest.” Commonwealth v. Seabrooks, supra at 443.
No such prejudice was manifest here. E. The defendant challenges the sufficiency of the business coursework help evidence of prior convictions presented at the subsequent offense portion of his trial. Reviewing the essay assent issue under the familiar standard of business, Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the medcalf resume defendant’s contention is without merit. First, there was ample evidence that the defendant was the business coursework help person who had been convicted of similar offenses once in 1986 and twice in portrayal, 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (“[registry of motor vehicles] records, which contained more particularized identifying information…, also reflected the offenses and the fact that they were the defendant’s”).
See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. A Level Business Coursework Help! 368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Ian Ker Essay Aid Grammar Assent! Commonwealth v. Weeks, 77 Mass.App.Ct.
1, 5 (2010). Finally, the judge’s instructions to the jury with regard to a level business coursework help, the prior convictions were proper where the judge simply instructed the jury that the in music documents in question were OUI convictions and reminded the jury that the coursework help Commonwealth still had the burden to email pdf, prove that the defendant was the person who had committed these previous offenses. F. A Level Coursework Help! There is email resume, no merit to the defendant’s contention that he was denied his right to speedy trial. A Level Coursework Help! Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.
910 (1979), “a criminal defendant who is not brought to trial within one year of the sample return day in the court in which the business help case is awaiting trial is presumptively entitled to ng resume, dismissal of the charges unless the Commonwealth justifies the delay.” Commonwealth v. A Level Coursework! Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant’s trial began on January 23, 2007, 686 days later. “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in rule 36(b)(2), or by portrayal of women videos a showing that the business defendant acquiesced in, was responsible for, or benefited from the delay.” Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Of the 686 days between those two dates, the has made us lazy docket sheet and documents filed in support or opposition to the defendant’s motion to help, dismiss show that many days are excluded from the calculation.
Due to jointly agreed upon continuances by the parties, at least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the defendant’s motion to resume, dismiss, which was filed on December 13, 2006, and decided on business coursework help January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at 505 n. Email Resume! 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and a level business coursework, trial, meaning that fewer than 365 days remain to count against the Commonwealth. Therefore, the defendant was tried within the time constraints of ian ker essay assent, rule 36(b), and a level business help, the order denying the motion to dismiss is in music videos, affirmed.
18. 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part: “Whoever, upon a level business coursework, any way or in any place to which the public has a right of ng resume, access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of a level business, 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…. “If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program… because of a like offense three times preceding the date of the 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….” 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is university thesis, “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct. A Level Business! 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass.
566, 568 (1926). 3. York University! If the evidence shows that a defendant was seated in the driver’s seat with the engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. A Level Coursework Help! See Commonwealth v. Email Resume Pdf! Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of business coursework, operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant “seated in the driver’s seat with the aid grammar engine running and a key in the ignition”); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Business Coursework Help! Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of medcalf, car with engine running and keys in ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Uski, 263 Mass. at a level help 23-24, there was conflicting testimony about whether the defendant turned on the motor or simply placed the of women in music videos essay key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (“The defendant’s intention after occupying the driver’s seat is not an element of the statutory crime”). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. Help! State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (“We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and resume, welfare of the public.
The danger is coursework help, less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away”). 7. Cf. Ian Ker Essay! Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the defendant did not operate the vehicle “[b]ecause the presence of the key in the ignition switch in the off position did not engage the a level business coursework help mechanical or electrical equipment” of the vehicle); Propst v. Eric! Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for a level business the proposition that the position of the key in the ignition is resume pdf, a factor that a trial court should consider but does not create a bright line rule).
8. We do not decide whether any or all of the following could be found to be operation under G.L. A Level Coursework Help! c. 90, § 24: inserting a key in the ignition without turning it and without engaging the motor or the vehicle’s power; using an electronic remote starting device to start the engine of the car without inserting a key in the ignition, where putting a key in ng resume, the ignition would be required to actually drive the car; or putting the key in the ignition to engage either the electricity or the motor before going to sleep in a seat other than the driver’s seat. 9. In the absence of any evidence below regarding whether the key, when turned in the ignition to help, the on position, engages the engine, we reach no conclusion on technological essay that mechanical issue. 10. The relevant portion of the a level jury instructions is the following: “The first element which the Commonwealth must prove is that the defendant operates a motor vehicle. The expression ‘operation of a motor vehicle’ covers not only all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in motion.
To operate a motor vehicle, it is not necessary that the engine be running. The intentional as opposed to accidental manipulation of any mechanical part of the vehicle, or the use of any electrical agency which alone or in sequence will set in technological progress us lazy, 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 sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. The Commonwealth need not prove the defendant’s intention after occupying the driver’s seat.” 11. We also reject the business defendant’s argument that “a stopped engine instruction” 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. Eric Medcalf! 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, § 24, includes “at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation”). Such an instruction was inappropriate here where the Commonwealth’s theory was that the a level business coursework defendant was operating the vehicle by putting the sample key in the ignition and turning it. This theory did not depend on any previous operation of the vehicle.
12. Business Help! The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and was “highly intoxicated.” Furthermore, the thesis arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. A Level Coursework! The arresting officer testified that the vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the Commonwealth failed to meet its burden by not introducing sufficient evidence that the defendant’s friend was not the person operating the pdf vehicle. See Commonwealth v. A Level Coursework! 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 current case because, here, the police only found one possible operator at of women the scene and the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing).
16. The defendant’s trial on an unrelated charge began on October 5, 2006. The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to a level, a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the requirement for sample ng resume 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. A Level Coursework! Assuming, arguendo, that the judge denied the york thesis motion–there is no record of such ruling–and that this issue is properly before this court, we affirm. Business Help! General Laws c. 276, § 35, applies only to mid-trial continuances and the delay complained of by medcalf resume the defendant is prior to the commencement of trial and, thus, does not fall within the statute. A District Court jury found the defendant guilty of motor vehicle homicide by a level coursework operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. Sample Ng Resume! c. 90, § 24G[a]), and by a level coursework help negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[a]). 75 Mass. App. Ct. York! 643. Appeals Court of Massachusetts, Bristol. Argued March 6, 2009.
Decided November 2, 2009. Paul C. Brennan, Dalton, for a level business help the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for york university thesis the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Ct. 644] A District Court jury found the defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and a level business, negligent operation (in violation of G.L. Sample! c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. Business Coursework Help! 90, § 24[a]). Videos Essay! The defendant, who is African-American, appeals upon a level help, claims that (1) the trial judge improperly allowed the Commonwealth’s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant’s blood alcohol content and erroneously instructed the videos essay jury on that evidence; and (3) calculated improprieties by coursework help the prosecutor and extraneous influences upon resume pdf, the jury resulted in reversible error. We reverse.
The trial judge did not offer a sufficiently adequate and business, contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant’s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of G.L. c. In Music Videos Essay! 90, § 24(2)(a). On June 1, 2004, the business same court issued an sample ng resume, additional complaint charging the a level business coursework help defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of G.L. c. Ian Ker Essay Aid Grammar! 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Commonwealth’s motion to coursework help, amend the June 1 complaint to add an alternate theory of intoxication, a 0.08 percent “per se” violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. 645] in New Bedford District Court, and on portrayal of women in music videos May 19, 2006, the jury returned guilty verdicts on both charges.
The trial judge sentenced the defendant to two and one-half years in the house of correction on the motor vehicle homicide charge and a consecutive sentence of help, two years in the house of correction on the negligent operation charge. In December of 2006, the defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the essay 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’s jeep and business, the victim’s vehicle collided at email resume an intersection in New Bedford.
Four people witnessed the collision, and each of them testified at business trial. According to technological progress essay, the witnesses, the defendant’s jeep went through a stop sign at a high rate of speed and struck the victim’s vehicle. A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in an agitated manner. A Level Business Coursework Help! The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from medcalf resume, multiple traumatic injuries. Business Help! Paramedics took the defendant to the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash. She analyzed the damage to the vehicles and made numerous measurements of the crash scene. Based on her investigation, the expert concluded that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass.
App. Pdf! Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to a level business, the officers, the defendant was “angry [and] agitated” and his breath smelled of alcoholic beverages. Ng Resume! He told the officers that he had consumed “a forty of a level business coursework help, OE,” a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant’s demeanor changed when one of the officers notified him of the of women videos essay victim’s death. While at the hospital, the defendant complained of pain in his chest. In response to his complaint, hospital staff drew a blood sample from him and analyzed it.
The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of .15 to .16. Discussion. 1. A Level Business! Peremptory challenge. Jury selection proceeded over two days. On the first day, the judge called juror to side bar for ng resume further questions.
The juror told the judge that she was diabetic. The judge assured her that the disease would not be a problem. The juror noted also that her son had faced criminal charges in a level business help, New Bedford District Court. Sample Ng Resume! She stated, however, that she could be a fair and impartial juror. Coursework! The judge seated her conditionally in the jury box in advance of the parties’ challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror. The judge noted that juror nineteen was the pdf only African-American in a level coursework help, the jury pool from either day. She asked the Commonwealth to explain the resume challenge. In response, the business coursework prosecutor gave two reasons: (1) the juror’s speech and mannerisms indicated that she was slow and might have difficulty in pdf, the deliberation of the evidence of a three- or four-day trial; and (2) the prosecutor’s discomfort caused by the juror’s fixed stare at him during empanelment.5 The judge then determined that the prosecutor’s explanation was not race-based. [75 Mass. A Level Business Coursework! App.
Ct. 647] Defense counsel asked for the judge’s impression of juror nineteen. The judge stated that the juror had “somewhat of a halting speech pattern” and assent, was “not incredibly articulate but … not inarticulate either.” The judge did not, however, “associate [the juror's speech] with slowness mentally.” The prosecutor explained that he believed that juror nineteen’s mental acuity was similar to that of another juror whom the judge had removed for a level business help cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth’s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the jury had entered the court room, the pdf judge commented further on a level business coursework the Commonwealth’s peremptory challenge of essay aid grammar, juror nineteen. She stated that, after the previous day’s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and that she “wanted to coursework help, put some more … findings on portrayal videos essay the record.” She recounted that she had requested an a level business, explanation for sample the peremptory challenge, and she repeated the prosecutor’s explanation. She noted also that the business coursework applicable case law requires “a two prong analysis.
One having to do with the adequacy of the Commonwealth’s position once having been questioned about the reason for the challenge and then the genuineness of that.” Although the prosecutor had not mentioned the criminal. [75 Mass. App. Ct. 648] history of juror nineteen’s son when he had offered his explanation for the challenge, the judge referred to it in ian ker essay aid grammar assent, her findings.8 The judge concluded her findings with the statement that “I find … the Commonwealth’s explanation both adequate and genuine, which is why I allowed the challenges to stand.” Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of business coursework help, peremptory challenges to exclude prospective jurors on the basis of race. See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). Ian Ker Essay Assent! “[W]e begin with the presumption that a peremptory challenge is proper.” Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. Business Coursework Help! denied, ___ U.S. ___, 129 S.Ct.
202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof “that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of ng resume, a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.” Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the business coursework help party opposed to technological progress has made essay, the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass.
460, 463, 788 N.E.2d 968 (2003). When “the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of discrimination has been made.” Id. at a level 463 n. Assent! 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which “pertain[s] to the individual qualities of the prospective juror and not to that juror’s group association.” Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. If the business help proponent’s. [75 Mass.
App. Ct. Of Women In Music Videos! 649] explanation seems superficial, the judge. should also allow rebuttal from the a level business help adverse party. See Commonwealth v. Calderon, 431 Mass. Of Women Essay! 21, 26, 725 N.E.2d 182 (2000).
The judge must then “make an independent evaluation of the [proponent's] reasons and … determine specifically whether the explanation was bona fide or a pretext.” Ibid. “In other words, the judge must decide whether the explanation is a level help, both `adequate’ and `genuine.’” Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). “[I]t is imperative that the record explicitly contain the judge’s separate findings as to both adequacy and ng resume, genuineness and, if necessary, an explanation of those findings.” Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass. 212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the question of the propriety of the peremptory challenge.
She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to respond. See Commonwealth v. Business Coursework! Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be “slow” and university, because she had stared at him in a discomforting manner. The judge received defense counsel’s opposing response. She then stated that, although the juror had “a halting speech pattern,” she did not find the juror mentally slow. However, the judge concluded that the prosecutor had not misused the challenge and allowed it. It was not until the a level help next day that the judge explicitly found the prosecutor’s explanation to be adequate and genuine. The judge’s own language demonstrates that she recognized generally the two-part standard of resume, adequacy and genuineness. However, her ruling falls short of the firm and timely explanation for allowance required by a level business coursework the line of ng resume, cases culminating in Commonwealth v. Benoit, supra.
As in Commonwealth v. A Level Business Help! Maldonado, supra, and portrayal in music, Commonwealth v. A Level Help! Benoit, we cannot conclude that the judge properly allowed the university thesis challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor’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’s peremptory challenge where judge. [75 Mass. App. Ct. A Level Coursework Help! 650] requested explanation and then allowed challenge but “did not find that the prosecutor had met her burden of establishing an sample, adequate, race-neutral explanation that was the genuine reason for the challenge”); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant’s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for peremptory challenge).
In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney’s office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by 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 business coursework help, genuineness required by the cases to sustain the peremptory challenge. Ian Ker Aid Grammar! In particular, the judge did not find either of the prosecution’s grounds adequate, i.e., “personal to the juror and not based on the juror’s group affiliation” and “related to the particular case being tried,” however genuine or bona fide the offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968.
The governing standard is demanding. The precedents require reversal of the convictions. 2. Evidence of blood alcohol content. Coursework Help! The Commonwealth. [75 Mass. Ian Ker Aid Grammar Assent! App. A Level! Ct. 651] began trial with two theories of portrayal in music videos essay, operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory.
At the business coursework beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant. She made no reference to alternate theories of operation under the technological progress has made us lazy influence. During the trial, the Commonwealth introduced evidence of the defendant’s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on coursework help both theories. University! The judge stated that she was inclined not to give an business coursework help, instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the email pdf jury, in relevant part, as follows: “The law says that if the percentage of alcohol by weight in the defendant’s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at the time.” For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor’s reference to it in his summation, or the business coursework help judge’s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, § 24G, the motor vehicle homicide statute, and G.L. c. 90, § 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of intoxication. St.2003, c. 28, §§ 1, 21, 22.
Pursuant to the amendments, the sample Commonwealth may prove intoxication through evidence that the coursework defendant had “a percentage, by weight, of university thesis, alcohol in [his] blood of eight one-hundredths or greater.” G.L. c. Business! 90, § 24G(a). York Thesis! Prior to the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of .08 percent or greater. Commonwealth v. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference. See Commonwealth v. A Level Business Coursework Help! Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. Sample Ng Resume! 1009, 902 N.E.2d 368 (2008).
In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Ct. 652] absence of expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: “If … the Commonwealth were to proceed only on a theory of impaired operation [instead of coursework, both a per se theory and portrayal of women videos, an impaired operation theory] and a level, offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and email resume pdf, without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the jury would be left to guess at its meaning.” Ibid. Coursework! As for trials where the technological progress us lazy essay Commonwealth relies on both theories, the decision states further: “[I]f the per se and impaired ability theories of criminal liability are charged in the alternative … and business coursework, so tried, we see no prejudice in the admission of portrayal in music essay, breathalyzer test results without expert testimony establishing the business help significance of the test level to the degree of intoxication or impairment of the defendant.
In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor.” Id. at 817, 864 N.E.2d 498. Progress Essay! We presume that this language applies to the results of blood tests in addition to the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Business Help! Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant’s objection, admission of the results required reversal. Id. at portrayal of women essay 664, 885 N.E.2d 164. In this case, the a level complaint charged both theories. The judge admitted evidence of the defendant’s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the jury on the per se theory. York University! Furthermore, the a level business help judge erroneously instructed the jury on the permissible inference of intoxication eliminated by the 2003 amendments. See. [75 Mass.
App. Eric! Ct. 653] Commonwealth v. A Level Coursework! 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. York! Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice. Under that standard, the question becomes whether the erroneous instruction and business, the blood alcohol evidence may have influenced the ian ker essay aid grammar assent verdict of guilt. Commonwealth v. Alphas, 430 Mass.
8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Business! Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth’s evidence of intoxication was strong. The percipient witnesses testified that the york university defendant drove through a stop sign at a level a high speed and york thesis, hit the victim’s vehicle. A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection. A Level Help! The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and portrayal essay, that he confessed to consumption of help, forty ounces of beer earlier in the evening. However, the laboratory supervisor’s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication.
Without it, the Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Portrayal Videos Essay! Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the defendant’s signs of intoxication differed. Under the impaired operation theory submitted to a level business help, the jury, the error may have materially influenced the sample verdict and therefore created a substantial risk of a level business coursework, a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at 13, 712 N.E.2d 575.
[75 Mass. App. Ct. 654] Conclusion.14,15 For the foregoing reasons we reverse the essay judgments and set aside the verdicts. The case is business help, remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G.L. c. Email Resume Pdf! 90, § 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the coursework influence and by negligent operation (in violation of G.L. c. York! 90, § 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the a level help first complaint. 2. Under G.L. c. 90, § 24G(a), the Commonwealth may use either of two theories to prove operation under the influence: (1) operation “with a percent by weight, of ian ker aid grammar assent, alcohol in [the] blood of eight one-hundredths or greater, or  while under the business coursework influence of intoxicating liquor.” G.L. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21.
See Commonwealth v. Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. Resume Pdf! 1009, 902 N.E.2d 368 (2009). A Level Help! Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory.
3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth’s motion to file a late notice of sample, appeal from the grant of the defendant’s motion for relief from an unlawful sentence. The Commonwealth’s appeal has not entered in a level business, this court. In its brief, the Commonwealth does not argue the eric medcalf propriety of the grant of the motion. Therefore, we do not address it. 4. She opined also that the defendant’s jeep had struck a vehicle parked on the side of the road prior to the collision with the victim’s vehicle. 5. In its entirety, the prosecutor’s explanation was: “Judge, she appears slow to me at side-bar in her speech and mannerisms and a level help, while we were impaneling today, I locked eyes with her a few times and eric resume, it appeared to me that she was staring at a level coursework help me, staring me down while we were at the side-bar; and ian ker essay assent, it bothered me.
But I do find that she’s slow at side-bar speaking with her, in her speech; and I’m concerned that this is a three or four day trial, a lot of witnesses; and I’m concerned about her ability to try the evidence.” 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of business coursework help, a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge. 7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). University! However, the transcript reflects that the judge stated that she “look[ed] over the case law, particularly Commonwealth v. A Level Business Help! Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of a [discrete] group….” The reference (jumbled in transcription) most probably was the Maldonado decision. 8. The judge’s reference to the criminal history of juror nineteen’s son was as follows: “I would also add that it was known to email, all of us that [juror nineteen] had had a son who had apparently a criminal matter in a level business, this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney’s office and apparently came up…. [A]nd I don’t remember the case per resume se but she spoke about it.
It apparently just happened last fall.” The judge went on a level business coursework to say that she understood the eric Commonwealth’s concern “whether she could perform in a truly objective manner” because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by coursework help the prosecutor. 9. As mentioned above, in email resume pdf, the next-day review of business coursework help, her reasons for allowance of the peremptory challenge, the judge referred to the experience of juror nineteen’s son in videos essay, the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the juror’s son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutor’s peremptory challenge. See Commonwealth v. A Level Help! Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass.
237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of success. “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s `gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.” Commonwealth v. Maldonado, 439 Mass. at york 465, 788 N.E.2d 968.
11. This reasoning does not interfere with the a level authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of either the Commonwealth or a defendant. 12. The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the of women in music videos Colturi decision in April 2007; and coursework, this court the Hubert decision in in music videos, May 2008.
Therefore the judge and trial counsel did not have the benefit of business, those interpretations of the 2003 amendments. 13. In Commonwealth v. University Thesis! Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and a level business, preserved the issue so that the standard of review was the presence of pdf, prejudicial error. Here we have reviewed the issue under the less demanding standard of substantial risk and coursework help, found the resume error again sufficiently serious to require reversal. 14. As mentioned in coursework, the introduction, supra, the defendant argues also that extraneous influences on the jury and medcalf, alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by business coursework the victim’s mother at university thesis the defendant as the jurors left the courtroom on the first day of trial, and (2) the presence of a makeshift memorial to a level coursework help, the victim at the accident scene during the jury’s view of the york university thesis site. The claim of calculated impropriety by a level business coursework help the prosecutor arises from testimony of two police officers that they told the defendant that he had “killed” the york thesis victim. A Level Help! The defendant asserts that the portrayal videos prosecutor intended that the officers testify in a level, this manner, in violation of the judge’s decision on a motion in limine.
No evidence supports the york view that the a level business coursework help mother’s outburst or the accident site memorial overcame the judge’s instructions for a verdict based strictly on the evidence. The claim related to the officers’ use of the word “killed” fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by reason of the admission of the blood alcohol test result. York University! The rule of a level business help, Melendez-Diaz v. Massachusetts, ___ U.S. Sample Ng Resume! ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in a level, the appeal.
Massachusetts OUI Case – Defendnat admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Gerald W. Resume! 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’s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. A Level! (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Panel SAUFLEY, C.J., and york university, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the court imposed on Gerald W. 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. A Level Business Help! 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 portrayal in music essay, imprisonment required by the statute. The court did so after finding that the a level business coursework help statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that “all penalties and punishments shall be proportioned to the offense.” Me. Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the.
court erred in admitting a certified record from the Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State’s appeal is accompanied by the written approval of the Attorney General as required by in music essay 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. P. 21(b). Business! Because we agree with the State’s contention that the sentence imposed on of women in music Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in dispute.
On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. He had not been drinking. Gilman, a member of the local Elks Club, was returning from the club’s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to a level business coursework help, the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman’s license had been revoked as a result of medcalf, multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the a level business coursework Secretary of State, admitted at trial over has made, Gilman’s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of coursework, his three OUI convictions within the previous ten years.
29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as “Tina’s Law,” provides that in that circumstance “the minimum fine . Essay! . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by a level business coursework help the court.” 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. 606, ? A-11 (effective Aug. Email Resume! 23, 2006).
? 6 Gilman moved to dismiss the allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the charge to business coursework help, a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aid grammar, aggravate the a level coursework help operating after revocation (OAR) charge with prior convictions for OUI. The Superior Court (Jabar, J.) denied the motion. ? 7 At a jury-waived trial held on portrayal videos essay 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’s motion for a judgment of acquittal, and took the ultimate issue of a level, 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 ng resume, 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 a level issues under advisement. ? 8 On September 8, the in music videos essay court issued a written decision finding Gilman guilty beyond a reasonable doubt.
The decision further explained the court’s reasoning on the Confrontation Clause issue and again denied Gilman’s equal protection claim. On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the court to a level business help, 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 “Tina’s Law” increased the penalties if he were to sample, be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman’s due process claim and coursework help, denied it. It then heard testimony relevant to sample ng resume, the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilman’s sister, and business help, Gilman himself.
At the conclusion of the hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the resume court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Gilman, as well as the manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Gilman. ? 11 At a final hearing on December 11, the court conducted the statutorily required sentencing analysis on a level coursework the Class C conviction and resume, sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and coursework help, a $1000 fine. See 17-A M.R.S. ? 1252-C (2009).
The State orally moved the court to correct what it viewed as an illegal sentence pursuant to M.R.Crim. Of Women In Music Videos Essay! P. A Level Help! 35(a);4 the motion was denied orally and later in a written order. Technological Progress Has Made Essay! This appeal and cross-appeal followed. A. A Level Help! Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Ng Resume! Section 9 sets limits on the State’s power to business coursework, punish: “Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to ian ker aid grammar assent, the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” Me. A Level Business Help! Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the resume Superior Court to impose an a level business coursework help, unsuspended prison sentence of at least two years. 29-A M.R.S. Portrayal Videos! ? 2557-A(2)(D).
Accordingly, the coursework court’s lesser sentence was facially illegal unless the resume pdf court was correct in business coursework help, its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and medcalf, (2) because of Gilman’s individual circumstances, the mandatory sentence was disproportionate to his offense, and business coursework help, therefore the sample statute is unconstitutional in this instance.5 Gilman’s burden is significant, as “one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of “strong and a level help, convincing reasons.” Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an medcalf resume, open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in a level business help, rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the individual or because of the manner in which the thesis sentence is carried out, there was not enough information in a level business coursework help, this case for the trial court to reach that conclusion. State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6.
? 15 This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to email resume pdf, the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that “punishments shall be proportioned to the offense.” Me. Const. art. I, ? 9 (emphasis added). It says nothing about the business coursework help individual offender.
This is ng resume, of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used. Because the same principles employed in the construction of statutory language hold true in the construction of a constitutional provision, we apply the plain language of the constitutional provision if the language is business, unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning.
See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that “it is a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings” (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by email pdf the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant’s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to point out that we were not required in that case to a level coursework help, 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 Supreme Court has upheld or struck down severe sentences based on ian ker aid grammar assent 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. Business! See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. Of Women In Music Videos! 2680, 115 L.Ed.2d 836 (1991) (“We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.”). Regarding the Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to individualized sentencing.
Legislatures are free to provide for help mandatory sentences for particular offenses.. . . The mere fact that a sentence is mandatory and severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by our cases holding that the has made essay Legislature has the power to enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the coursework Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is appropriate to do so, subject only to in music essay, the constitutional prohibition against punishment disproportionate to a given offense.
The construction urged by Gilman would go far beyond what the language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature’s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant’s individual circumstances in finding that a mandatory sentence is disproportionate as applied to that person is simply reinstatement by judicial declaration of a sentencing court’s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). A court would then always have the sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on the ground that the mandatory sentence is disproportionate as applied in a particular case. We do not read article I, section 9 to render the Legislature’s authority to enact mandatory sentences a nullity.10.
? 21 Because we hold that the a level clause, “all penalties and has made, punishments shall be proportioned to a level help, the offense,” means what its plain language says, and does not require consideration of the york thesis individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court “always has the power and business, duty to uphold the State and Federal Constitutions,” and will “protect the technological has made us lazy individual from an unconstitutional invasion of his rights by the legislative . . . branch of government.” Dep’t of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as “the voice of the sovereign people” in the area of crime and punishment: The fixing of an adequate criminal penalty is business coursework help, properly and sample, legitimately a matter of legislative concern. It is not the office of the judiciary to a level help, interpose constitutional limitations where none need be found. Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to be avoided might then be a cruelty of constitutional dimensions. It seems to us that the interest of the legislature is paramount in the field of penology and the public safety. The legislature defines the contours of the crime itself, and email pdf, sets the limits for punishment. A Level Business Coursework Help! . Medcalf Resume! . . The underlying structure of the penal system is statutory; the coherence of the system is to be found in legislative direction. State v. King, 330 A.2d 124, 127-28 (Me.
1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (“The power of business, punishment is vested in the legislative, not in the judicial department. Ng Resume! It is the a level business coursework legislature, not the court, which is to define a crime and ordain its punishment.” (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and unusual as whether it “is greatly disproportionate. . Portrayal Of Women In Music Videos Essay! . and whether it offends prevailing notions of decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at a level help 376; whether it “shocks the conscience of the public, or our own respective or collective sense of fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is ian ker essay, “inhuman or barbarous,” State v. Help! Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is progress, “the voice of the sovereign people,” King, 330 A.2d at 127, and thus expresses the people’s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the collective conscience of the people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the judgment of the Legislature is the collective judgment of the people. ? 24 Gilman was convicted of a Class C crime, punishable by a level business coursework a maximum of email resume, 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.
29-A M.R.S. ? 2557-A(2XD). A Level Coursework! 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 technological progress has made us lazy essay zero-to-five-years scale is not the coursework help rare, extreme, or shocking case, and does not violate the proportionality requirement of article I, section 9. C. Equal Protection.
? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the resume pdf 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 a level, overrule our decision in State v. Resume! Chapin, where the same argument was advanced and a level help, rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was “certainly strong enough” to justify the imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to 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 eric, prior OUI convictions to a level, an enhanced sentence for operating after revocation remains intact. ? 27 Gilman next contends, on the authority of ian ker essay aid grammar assent, State v. Stade, 683 A.2d 164, that because his license had been revoked, the business coursework help State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of 29-A M.R.S. ? 2557-A. See P.L. 2005, ch. Portrayal Of Women In Music Essay! 606, ? A-11 (effective Aug.
23, 2006). ? 28 In Stade, we held that a defendant’s due process rights may be violated when an a level business help, agent of the State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and Gilman is aid grammar assent, presumed to know what the law is. See Houghton v. Hughes, 108 Me. Business! 233, 236-37, 79 A. 909 (1911). Contrary to progress us lazy, Gilman’s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in effect at a level help 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. Ng Resume! ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12.
E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of help, State stating that his privilege to operate had been revoked, that he had received proper notice of the revocation, and portrayal of women in music essay, that he had three OUI convictions within the preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of a level coursework help, State certification did not offend the Confrontation Clause because “the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.” 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Email Resume Pdf! Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the business coursework Court held that the admission of a chemist’s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although “documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . that is ian ker aid grammar, not the case if the regularly conducted business activity is the production of evidence for use at a level trial.” Id. at portrayal videos 2538, 174 L.Ed.2d at 328 (citation omitted).
? 31 We recently analyzed the impact of Melendez-Diaz on a level business coursework Tayman and concluded that Tayman remains good law. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman’s argument fails. Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided:
D. A person is guilty of a Class C crime if the person commits the york university 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 business, $1,000 and york university, the minimum term of imprisonment is 2 years, neither of which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). A Level! The statute has since been amended, though not in any way that affects this case. P.L.
2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases).
3 The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)). 4 The Rule provides: “On motion of the . . . attorney for the state . Of Women! . . made within one year after a sentence is imposed, the a level help justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner.” M.R.Crim. P. 35(a).
5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by essay aid grammar assent the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the business coursework United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and york, this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. Coursework! 2641, 171 L.Ed.2d 525, 538 (2008) (“The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. Ian Ker Aid Grammar! . . Business Help! . Email Resume! The Eighth Amendment’s protection . . Help! . flows from the of women videos basic precept of business coursework, justice that punishment for a crime should be graduated and proportioned to the offense.” (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (“In analyzing whether a sentence is cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to the offense and whether it offends prevailing notions of decency.”); State v. Sample! Frye, 390 A.2d 520, 521 (Me. 1978) (“A mandatory sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of business coursework help, decency”); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (“The interpretation of `cruel or unusual punishment’ also is informed by the requirement of proportionality.”). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Resume! Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. A Level Coursework! Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me.
1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. Medcalf! 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in a level business, particular case irrelevant); c.f. State v. Progress! Alexander, 257 A.2d 778, 783 (Me. Business Help! 1969) (holding five-day sentence imposed by court in its discretion for contemptuous “reprehensible conduct” not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of 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. York Thesis! 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for a level business help stealing three golf clubs under “three strikes” law not grossly disproportionate and technological us lazy, therefore not cruel and unusual); Atkins v. A Level Help! Virginia, 536 U.S. 304, 321, 122 S.Ct. York University Thesis! 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for coursework help 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 technological progress has made us lazy possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the business help sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and finally determines whether any of the maximum sentence should be suspended in arriving at ian ker essay aid grammar assent a final sentence.
17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Governor the equitable power to a level coursework, “grant reprieves, commutations and pardons” in individual cases. Me. Progress Us Lazy! Const. art. V, pt. A Level Business Coursework Help! 1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the Supreme Court used the hypothetical example of “a legislature making overtime parking a felony punishable by life imprisonment.” Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted).
12 Title 29-A M.R.S. ? 2557 was repealed and replaced by P.L. University! 2005, ch. A Level Business! 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on university October 14, 2005. Gautier’s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to a level business help, the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant.
Criminal No. Technological Us Lazy Essay! 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender’s Office District of Massachusetts, Boston, MA, for a level business help Eddie Gautier. William D. Essay! Weinreb, United States Attorney’s Office, John A. Wortmann, Jr., United States Attorney’s Office, Boston, MA, for United States of coursework help, America. GERTNER, District Judge: TABLE OF CONTENTS.
A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the technological progress has made 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 a level 1998 Juvenile Offenses Were Committed on Different. 2. Whether the progress has made essay Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and business, ammunition in aid grammar assent, the pocket of defendant Eddie Gautier (“Gautier”) one night in Roxbury.
The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by 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 business coursework, 18 U.S.C. § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and technological has made, a resisting arrest charge from coursework help, 2001, when he was 20. (He is ng resume, presently 27.) The Guideline sentencing range for a level business Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). See § 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions). I disagree. In passing the ACCA, “Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at sample ng resume least a potential threat of harm to persons.” Taylor v. Coursework! United States, 495 U.S. 575, 587-88, 110 S.Ct. Sample! 2143, 109 L.Ed.2d 607 (1990). Gautier’s criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The.
predicate offenses for a level business help the ACCA enhancement are the two serious juvenile offenses, and york thesis, resisting. After two rounds of briefing and two sentencing hearings, I found that Gautier is a level, not an armed career criminal under the terms of the statute. York! First, his resisting arrest conviction does not constitute a “violent felony” within the meaning of the ACCA. Second, and in the alternative, court records were ambiguous on help the question of whether his 1998 offenses were “committed on occasions different from one another” as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months’ incarceration, in effect the Guideline felon in possession sentence, and three years’ supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for that sentence. On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. Sample! He decided to meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group.
One of Gautier’s friends, Salome Cabrera, peered into the vehicle and a level coursework, made movements toward his waistband. University! The officers exited the car, badges displayed, and walked to business coursework help, Cabrera. Cabrera then allegedly shouted “get the burner” (slang for gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. Portrayal In Music! They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier’s jacket pocket. A Level Coursework Help! 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 eric one count of felon in a level coursework, possession of a firearm and of women essay, one count of felon in possession of ammunition, both pursuant to 18 U.S.C. § 922(g)(1). A Level Business! Subsequent to his arrest, he agreed to speak to federal agents and police investigators, admitted to possessing the gun, and university thesis, divulged where it had come from.
Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to help, the charge, but was advised against it because of the progress us lazy essay possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for business Gautier sought a pre-plea Pre Sentence Report (“PSR”). When the pre-plea PSR concluded that an eric resume, ACCA enhancement was required, the defendant felt obliged to a level business coursework, go to trial. At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction. Sample Ng Resume! 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 level business help, a dangerous area of Boston.
The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an portrayal of women in music, ACCA predicate, an a level coursework, issue raised in the defendant’s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties’ submissions, I concluded that the ACCA enhancement was not warranted, principally because of the technological progress has made essay resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well.
Gautier’s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. Coursework! § 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. That statute provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years…. 18 U.S.C. § 924(e)(1). Of Women Videos! Gautier’s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier’s conviction for resisting arrest may not be a “violent felony” under the ACCA.
Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the a level 1998 offenses were “committed on occasions different from one another.” A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Gen. Laws Ch. 268, § 32B Is a Violent Felony. The ACCA defines “violent felony” as any crime punishable for a term exceeding one year that “(i) has as an element the 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 physical injury to another.” 18 U.S.C. York University! § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and not to business, the facts underlying the conviction. Eric Medcalf Resume! See Taylor, 495 U.S. at coursework 600, 602, 110 S.Ct. 2143.
Put simply, the sample ng resume issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the coursework help case law expressly cautions courts against engaging in ng resume, a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the coursework sentencing judge “may not hold a minitrial on the particular facts underlying the prior offense,” see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may “peek beneath the coverlet” of the formal language to ascertain whether the conviction was for resume 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 a level business help, Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that “peek” can go. “Not very far, is the ian ker answer.” United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at 600-02, 110 S.Ct.
2143; Damon, 127 F.3d at 142-46.) If the defendant was convicted after a trial, the court is business help, permitted to consider what the jury instructions suggested about the verdict. When a defendant’s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the resume plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at a level business help sentencing, and any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the relevant facts contained in technological essay, 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’s 2002 plea to a level business, the charge establishes that the plea was to ian ker essay, the violent version of the felony. Under the Massachusetts statute, a person is coursework help, guilty of the offense if he knowingly prevents or attempts to prevent an officer from eric medcalf, effecting an business, arrest by “(1) using or threatening to resume, use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” Mass. Gen. Laws ch. 268, § 32B(a).
The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it “has as an element the use, attempted use, or threatened use of physical force against the person of a level coursework, another.” 18 U.S.C. § 924(e)(2)(B)(i); see Gov’t Sent. Mem. 3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier’s colloquy, no plea agreement, and sample ng resume, no other record indicating which type of a level business coursework help, resisting arrest Gautier admitted.
While the PSR reviewed the police report of the offense, Gautier did not adopt the technological progress has made us lazy essay facts as true. Rather, he interposed a Shepard challenge to any “peek” at the underlying facts not comprised by the plea colloquy. Accordingly, as in Shepard, the criminal complaint to a level help, which Gautier pleaded is the only extant evidence I may consider, and it simply lists the offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and as the. statute is york university thesis, structured in the disjunctive, the coursework government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. 1. Whether the Crime Defined by eric medcalf resume Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the business coursework help 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 “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” Mass Gen. Laws. ch. 268, § 32B(a), does not explicitly “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i).
Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an portrayal of women videos, element, coupled with Prong (2)’s specification of resistance by “other means,” suggests that Prong (2) does not involve such an element by a level business help implication, either. 2. Whether the Crime Defined by Prong (2) of ian ker essay aid grammar assent, § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii) If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the second definition provided by business coursework the ACCA. Since resisting arrest is obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the use of explosives—the inquiry focuses on what has been called the residual clause of the ACCA statute. Portrayal Videos Essay! See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is whether resisting arrest “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” in the language of the Massachusetts statute, Mass.
Gen. Laws. ch. Business Help! 268, § 32B, “involves conduct that presents a serious potential risk of essay, physical injury to business coursework help, another,” in the language of the technological progress has made ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the business help criminal statute and the ACCA under the residual clause. In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a “violent felony” under the residual provision of § 924(e)(2)(B)(ii). Where the offense in question is resume pdf, not one of those enumerated in the statute, a court must determine not only (1) whether that offense “involves conduct that presents a serious risk of physical injury to a level, another,” but also (2) whether the crime is “roughly similar, in kind as well as in degree of risk posed, to eric resume, the” enumerated offenses.
Id. at 1585. The latter step is a level coursework, critical here. It requires a court to decide whether the offense in question typically involves “purposeful, violent, and aggressive behavior”—the defining feature of the email pdf enumerated offenses. The Court based the a level coursework Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to text, the court noted that the presence of the enumerated offenses of burglary, arson, extortion and crimes involving explosives “indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.’” Id. Portrayal Of Women In Music! Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the examples.
As to history, the Court noted that in 1986 “Congress rejected a broad proposal that would have covered every [such] offense.” Id. at 1586. Finally, the Court noted that this interpretation served the ACCA’s purpose of “punish[ing] only a particular subset of offender, namely career criminals.” Id. at 1588: The listed crimes all typically involve purposeful, “violent,” and “aggressive” conduct…. That conduct is a level business, such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to sample, harm a victim…. Were we to read the coursework statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels “armed career criminals.”
Id. at 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to another.” Id. at medcalf resume 1584. Even so, it held under the a level help second step of the sample ng resume analysis that a conviction for driving under the influence (“DUI”) falls outside the help scope of the sample ng resume residual clause because “[i]t is simply too unlike the a level coursework help provision’s listed examples for us to believe that Congress intended the provision to cover it.” Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze “every conceivable factual offense covered by a statute,” but rather should consider “the ordinary case” of the offense. James, 127 S.Ct. at 1597.
In the words of the First Circuit, I must evaluate the degree of in music, risk posed by “the mine-run of a level coursework, conduct that falls within the york heartland of the statute.” United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the business crime of of women videos essay, being a felon in possession of a level business coursework, a firearm is not a violent felony under the ACCA because risk of physical harm does not “often accompany the conduct that normally constitutes” the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court’s understanding that it had to ng resume, consider “what’s the typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence “if and only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant’ of the predicate offense”); Winter, 22 F.3d at 20 (“A categorical approach is not concerned with testing either the outer limits of coursework, statutory language or the university myriad of possibilities girdled by that language; instead, a categorical approach is concerned with the usual type of help, conduct that the statute purports to ian ker essay aid grammar assent, proscribe.”). To determine the mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in business, the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute. In Commonwealth v. Grandison, 433 Mass. Portrayal! 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant’s stiffening his arms and pulling one away for a second to coursework, avoid being handcuffed constituted resisting arrest by a “means which creates a substantial risk of causing bodily injury” to the officers involved. Id. at 144-45, 741 N.E.2d 25.
In Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. University Thesis! In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Commonwealth v. Grant, 71 Mass. App.Ct. 205, 210 n. 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the mine-run of conduct criminalized by Prong (2) involves a lesser version of business coursework help, “active, physical refusal to submit to the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to resist handcuffing.
Maylott, 65 Mass.App. Resume! Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the a level Begay analysis, I must determine whether the Prong (2) definition of resisting arrest “presents a serious potential risk of physical injury to another.” Stiffening one’s arms to prevent handcuffing, the 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. Essay Aid Grammar Assent! See United States v. A Level Coursework Help! Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on york university these grounds that fleeing or attempting to a level help, elude a police officer in a motor vehicle is not a “violent felony” for ACCA purposes) (“While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the university statute also charges behavior which would arguably not cause serious personal injury.”). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is “[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at coursework help the moment [the defendant] freed his arm.” 433 Mass. at 145, 741 N.E.2d 25.
Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the of women videos essay second part of the Begay test. A Level Help! The crime is not “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses. Begay, 128 S.Ct. at medcalf resume 1585. First, looking to the degree of business help, risk: Even if the Grandison court is correct that stiffening one’s arms and pulling away present a serious risk of harm to portrayal of women in music videos essay, 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 a level help, “the possibility of a face-to-face confrontation between the eric burglar and a third party … who comes to investigate.” James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the “powder keg” rationale). The element of surprise that spooks a burglar into business coursework help, personal violence is not present where police are already in email resume pdf, the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of a level coursework, one’s arms than that it will result from a burglary, the setting of a structure on york fire, unlawfully demanding property or services through threat of harm, or the a level business detonation of explosive devices.9. Second, looking to the “in kind” test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves “purposeful, violent, and aggressive behavior.” In Begay, the Court held that drunk driving does not fulfill the in music videos test because the offender does not possess the purpose or intentional aggression that characterizes the enumerated offenses. 128 S.Ct. at 1586-87 (“[S]tatutes that forbid driving under the influence … criminaliz[e] conduct in respect to which the offender need not have had any criminal intent at coursework all.”); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of email resume pdf, violence because it is business coursework, not intentional).
But as the First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall “neither within the safe harbor of essay, offenses with limited scienter requirements and uncertain consequences (like DUI …), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.” Id. at 7 (citation omitted). Prong (2) resistance is a level business coursework help, such a crime. The First Circuit recently explained that “all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to ng resume, qualify as a `violent felony’ under ACCA.” United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics. It explained: The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at 1587-88. Business Coursework Help! Perhaps because it is common sense that a DUI is york university thesis, not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “tending toward or exhibiting aggression,” which in turn is defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. Coursework! 2003). Violence may be defined as “marked by extreme force or sudden intense activity.”
Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a “crime of violence” under the career offender sentencing guidelines.10 Id. at 59. While the offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to be similar “in kind” to the enumerated offenses. Id. A similar conclusion obtains here. To be sure, the Prong (2) form of ng resume, 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 a level business coursework, risk of injury). It is differently purposeful, however, from the interstate transport of a minor for prostitution, which the sample First Circuit held in Williams constituted a “crime of business coursework, violence” under the career offender provision of the sentencing guidelines. 529 F.3d at 7-8. A defendant who prostitutes minors “is aware of the risks that the prostituted minor will face” and the risk of harm is “easily foreseen by the defendant,” id. at eric 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to a level, those around him. Moreover, Prong (2) resistance cannot be said to university, approach the aggression or violence of the enumerated offenses.
See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary “one of the `most damaging crimes to a level business help, society’ because it involves ‘invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and valued possessions’” (quoting H.R.Rep. No. 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by the court’s definition of violence. See Herrick, 545 F.3d at 60.
Nor does it resemble those offenses previously held by the First Circuit and ian ker aid grammar assent, the district courts in business, 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. York University Thesis! Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. A Level Help! Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Thesis! Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and a level business coursework help, battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. Sample Ng Resume! 30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old). And those cases predated Begay, when the standard for a level finding an offense to be a “violent felony” was easier to satisfy. In light of the difference in progress has made us lazy, aggression and violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the “`way or manner’ in which it produces” risk of injury. Coursework Help! Begay, 128 S.Ct. at of women videos 1586. To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of business coursework help, these cases predate Begay.11 Begay. “charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act.” Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government’s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a “crime of university, violence” under the career offender guidelines. United States v. Kristopher Gray, No.
07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. 24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for a level coursework conviction under 18 U.S.C. § 922(g)). In another post-Begay case on resisting arrest, the U.S. University Thesis! District Court for the District of Kansas held that the crime of fleeing and eluding an officer is not a crime of violence because “the statute also charges behavior which would arguably not cause serious personal injury” and because resisting arrest “is not similar to the listed crimes set forth” in § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the existence of a level business, a 2005 precedent concluding that the resisting arrest was a crime of violence. The court explained its about-face as required by Begay. Id. at *2.
In light of the Supreme Court’s pronouncement in of women in music videos, Begay, then, I find that the Prong (2) version of resisting arrest is a level business, not a “violent felony” under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of york university, one’s arms, not the application of force to another. 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 a level coursework, resisting arrest. Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Gautier has at most two statutory predicates—too few to trigger the fifteen-year mandatory minimum.
B. Email Resume! Whether the 1998 Juvenile Offenses Were Committed on a level business coursework Different Occasions. 1. Legal Standard. That Gautier’s resisting arrest conviction is not a violent felony is eric resume, enough to preclude the application of the business ACCA enhancement. In the ng resume alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not “committed on occasions different from one another” as required to constitute independent predicate offenses.12 18 U.S.C. Business! § 924(e)(1). Progress Has Made Us Lazy Essay! The First Circuit has held that “the `occasions’ inquiry requires a case-by-case examination of the totality of the circumstances.” United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the “identity of the business help victim; the type of crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the sample ng resume defendant’s conduct; and/or the apparent motive for the crimes.” Id. As one would expect from Congress’ use of the word “occasion,” the First Circuit has focused on the element of time. A Level Coursework Help! The Stearns court summarized that the statute distinguishes between, on the one hand, “a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,’ viz., a period (however brief) which is devoid of criminal activity and in eric, which he may contemplate whether or not to commit the second crime,” and on the other, “a time lapse which does not mark the endpoint of the first crime, but merely the a level business help natural consequence of a continuous course of extended criminal conduct.”13 387 F.3d at eric resume 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Business Help! 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 of women in music essay different victims in different locations occurred on business coursework 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. Essay Aid Grammar! Mollo, No. 97-1922, 1997 WL 781582, at business help *1 (1st Cir. Dec. Technological Essay! 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 a level business coursework 1237 (two assault and york, battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on business coursework help the same day); United States v. Has Made Us Lazy Essay! 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 order to apply the above legal standard to the facts of Gautier’s prior felony convictions, I must answer an a level, antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a “categorical approach” to determining whether a prior conviction qualifies as a “violent felony” and thus predicate offense under the ACCA. Taylor v. Email! United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the coursework help case of a guilty plea, the Court has limited district courts to “the terms of the charging document, the terms of eric medcalf, a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The issue I confront here is whether this same source restriction applies to a level business coursework, my consideration of whether two offenses were “committed on technological has made us lazy essay occasions different from business coursework help, one another.” 18 U.S.C. § 924(e)(1). The First Circuit has never ruled on this issue.
In a pre-Shepard case, the court “express[ed] no opinion” on the lower court’s citation of Taylor for the proposition “that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA.” Stearns, 387 F.3d at 107. In that case, the defendant sought an evidentiary hearing to develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an involved inquiry and denied his motion, but because the defendant accepted the judge’s ruling without objection, the ng resume First Circuit held he could not raise the issue on business help 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. University Thesis! The defendant argued it was error for help the district court to use facts gleaned from police reports and resume, described in the PSR to find that two drug offenses disposed of on a level business coursework help the same day were in fact “committed on york university occasions different from business help, one another.” Id. at 38. The court of appeals opted not to address his argument, finding that even counting the contested offenses as one the york defendant had enough predicates to trigger the ACCA. Id. at 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in United States v. A Level Business! Thompson, 421 F.3d 278 (4th Cir.2005), that the “ACCA’s use of the term `occasion’ requires recourse only to data normally found in sample, conclusive judicial records, such as the date and location of an offense, upon which Taylor and Shepard say we may rely.” Id. at 286 (upholding trial judge’s reliance on the PSR to find that three burglaries occurred on help separate occasions where that information was derived from Shepard-approved sources such as indictments and medcalf, where defendant never objected to the details in a level business coursework, 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. York Thesis! 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 a level predicate offenses were committed on different occasions. Id. at 279; see also United States v. Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and portrayal essay, remanded when it is unclear whether the sentencing court limited itself to Shepard sources in determining whether the a level defendant’s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005). Several district courts have come to the same conclusion. See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at ian ker aid grammar *2 (E.D.N.C.
Oct. 16, 2008) (limiting the occasions inquiry to facts available in Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. A Level Business Coursework! 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 york thesis applicability of coursework help, Shepard and holding that the trial court “properly reviewed the charging documents to determine that the offenses occurred on three separate occasions”). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to resume pdf, the occasions inquiry. The Sixth Circuit has been most emphatic: “All of our opinions on a level business coursework this issue have involved consideration of the email specific facts underlying the prior convictions.
Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the predicate offenses.” United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on a level business coursework help separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding “[a]s a practical matter” that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the ng resume question is “unsuited to a categorical approach,” United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to the categorical approach in Shepard. But see United States v. Business! Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the district court’s use of the PSR to determine that defendant had three predicates from different occasions for the ACCA). I find that the former approach is more faithful to the Supreme Court’s rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA.
As I explained in my remand opinion in Shepard, the Supreme Court’s categorical approach “caution[s] the email judge against becoming embroiled in a `daunting’ factual inquiry about what had actually happened at a level business the time of the state offense.” United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to trial is “what did the york defendant plead to business help, in the state court?” Id. at 17. Where a defendant has not been found guilty by eric medcalf a jury, it is only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at sentencing.14. In light of the Supreme Court’s caution in this area and the judgment of the business help courts of sample ng resume, appeals, I find that I am limited to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” in determining whether the coursework defendants prior offenses were committed “on occasions different from one another.” Id. at york university 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Gautier’s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases.
And no additional underlying facts were incorporated into business, the PSR and adopted by the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and specifically stating that police reports were not received). While the plea tenders merely contain the aid grammar assent defendant’s and a level business, prosecutor’s dispositional requests, several things are evident from the face of the indictments. Ian Ker! In Suffolk Superior Court case no. A Level Business! 98-10175, the york university thesis grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against a level business coursework help a victim named “F.L.” In Suffolk Superior Court case no. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and videos essay, battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and a level business help, that on the same day, he tried try to thesis, steal E.M.’s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against different individuals. But the a level coursework type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims.
Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the time interval between the offenses, or the continuity of the conduct. It is therefore not “possible to eric resume, discern the point at which the a level business first offense is completed and the second offense begins.” United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against sample ng resume 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 predicate offenses. See, e.g., United States v. Brown, 181 Fed. Appx. A Level Help! 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990).
As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions. See, e.g., United States v. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed “on or before November 30? did not establish that the offenses occurred on “occasions different from one another” for the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. Essay! 2005) (holding that Shepard’s source restriction governs determinations of coursework, whether prior crimes were “related” under the Sentencing Guidelines criminal history provisions, then ruling that the existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to the instant case.
Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the in music videos Commonwealth “may” charge two or more related offenses in the same indictment, and it may not. The fact that the a level coursework help Suffolk County district attorney charged Gautier’s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced “a period … devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,” Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies “on occasions different from assent, one another.” By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to Gautier.15. IV.
THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the Guidelines to this extent: the base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). Business Help! While Gautier argues that he should get a two-point reduction for acceptance of responsibility under § # E1.1(a) and (b), I disagree at ng resume least as Guidelines interpretation is concerned. I consider this issue in connection with the 3553(a) factors (see below). While the business coursework help 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’s criminal history is category IV under § 4A1.1(d) and (e). Ng Resume! The Guidelines range, then, is a level help, 63-78 months. B. 18 U.S.C. § 3553(a) Factors. Gautier argues for resume pdf a 48-month sentence because the gun was inoperable, because he took possession of business, it as a safety measure to avoid what he believed to be imminent harm to others, and because he has turned his life around while in custody.
I can find no clear rationale for a variance on these bases. Has Made Us Lazy! Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the purposes of 3553(a) for the following reasons: 1. Nature and Circumstances of the Offense. Gautier claims he took the gun from his friends because they were drunk and behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found.
Given his record, he should not have put himself in a position where the offense was even possible: in the Archdale projects, with drunk and a level coursework, disorderly compatriots, so much as touching a firearm. Ng Resume! Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety. Gautier cooperated with the authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to trial on the advice of business, his attorney to preserve his challenge to medcalf resume, the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines. I found Gautier contrite at his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life.
Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to help, Providence, Rhode Island, and eric resume, then to a level help, Boston after a fire damaged their home. This relationship did not last, according to Gautier’s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to technological progress us lazy, live with his paternal grandmother because of his discipline problems. He stayed there until age 16 when he returned to business, Massachusetts. Technological Us Lazy! DYS records reveal that at a level business help age 16 Gautier witnessed a good friend being stabbed in the chest and cradled his friend as he died. Pdf! After this incident another good friend. died of complications relating to pneumonia.
Soon thereafter, he was committed to DYS for a number of offenses. Business! He was released on parole at age 17, but was in and out of custody until age 21 due to videos essay, the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at a level DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of ian ker essay aid grammar, their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and studying with the prison chaplain. Business! Gautier spoke movingly of this work. He indicated to Probation that he hopes to resume, 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 a level business coursework, 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 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 medcalf resume, supervised release, Gautier is to speak at a level business coursework help high schools or to other young men identified by Probation as “at risk.” I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the pdf ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the Guidelines’ values with those of § 3553(a).
1. The ballistics report observed that “a portion of the trigger guard is a level business, broken off, the ejector rod collar is out of place, the ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the cylinder hand is not making contact with the videos essay cylinder, and neither the trigger nor the hammer can be drawn back to the firing position. Business! There is rust on the cylinder, the york ejector, the crane, and the trigger. This weapon cannot be fired in its present condition and in my opinion it would require extensive work and new parts to return this weapon to a state in which it can be discharged.” Boston Police Ballistic Unit Case Notes, Def.’s Sent. Mem., Ex. B (document # 60-2). 2. A Level! His prior convictions include offenses committed in sample, the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. Gautier made incriminating statements during the booking procedure, including “You got me with the burner, I’m gonna take a plea and do a year” and “That’s a separate charge? Of course it’s gonna have bullets in it, it’s a gun.” He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were “burglaries” under the ACCA.
The First Circuit reversed, holding that police reports could be considered if they “constituted sufficiently reliable evidence of the government and the defendant’s shared belief that the defendant was pleading guilty” to a generically violent crime. A Level Business Coursework! United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). Technological Progress Has Made Essay! I then concluded that the central question was, what did the a level help defendant plead to in state court, and that the police reports did not provide reliable evidence on that central question. United States v. Email Resume! Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the police reports could be considered and instructing me to apply to ACCA mandatory minimum.
United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the help court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by ng resume defendant, in determining whether a defendant had pleaded to a level coursework, a violent felony. Ng Resume! Shepard v. A Level Coursework Help! United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. Of Women In Music Videos! The criminal complaint substitutes the word “some” for a level coursework the word “any” in “any other means.” This discrepancy is of no consequence in this case. 6. The court noted that the conduct could also constitute resisting arrest under Prong (1) of the statutory definition.
Id. at 719. 7. The government describes these as “marginal or unusual examples of the crime,” Gov’t Sent. Mem. 3, but it offers no cases to york, suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the a level help Supreme Court heard argument in a case presenting the aid grammar assent question of whether failure to report to prison is a violent felony under the ACCA. Chambers v. United States, No. 06-11206, 2008 WL 4892841 (U.S. Business Help! Nov. 10, 2008). This case presents the Court with an opportunity to reevaluate the ian ker assent 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 a level business coursework help defendant into custody.
The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that “it is an embarrassment to the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences.” United States v. Ian Ker Essay Aid Grammar Assent! Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against business help an arresting officer. In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. The First Circuit has repeatedly held that “[g]iven the similarity between the ACCA’s definition of `violent felony’ and the definition of `crime of violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is generally persuasive when interpreting the other.” Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. University Thesis! Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for a level business help resisting arrest was a prerequisite “crime of violence” under the career offender guideline, U.S.S.G. In Music Videos! § 4B1.1. He confessed “hesitation” based on “the uncertain impact of the Supreme Court’s recent decision in Shepard” and the fact that the resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.’” Id. at 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendant’s motion to exclude his resisting arrest conviction as a predicate offense for help career offender status.
In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on appeal at the First Circuit. See Almenas v. Ian Ker! United States, No. A Level! 06-2513. Because the york parties in that case have urged the court to coursework help, remand the case on alternative grounds—namely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. ___, 128 S.Ct. Email Resume Pdf! 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physically injury to the officer and others.” Id. at 455. Because the court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here. Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of violence” under U.S.S.G. § 4B1.1 because any resistance other than simply going limp increases the possibility of a level business coursework help, a violent incident. See id. at 1055. 12.
The government urged me to consider this alternative holding, even though it had not fully briefed it, in email pdf, order to avoid addressing this issue on a remand, in the event of coursework, 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 “it is possible to discern the point at which the first offense is completed and the second offense begins”); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctor’s offices 200 yards apart occurred on different occasions, because defendant “made a conscious decision” to york university, commit another crime after completing the first). 14. The Shepard Court came to business coursework help, this conclusion in medcalf, part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would … make a disputed finding of fact about what the defendant and state judge must have understood as the a level business 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. Technological Progress Essay! 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 a level business coursework help State, and they guarantee a jury’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. Eric Medcalf Resume! United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, “the disputed fact here … is too far removed from the conclusive significance of a prior judicial record, and a level coursework help, too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.” Id.
15. In still another challenge to of women in music essay, the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of a level business, his January 8, 1998 criminal episodes does not qualify as a “violent felony.” The argument proceeds in several steps. First, an offense is eric, not a “violent felony” unless it is “punishable by imprisonment for a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by business coursework imprisonment for a term exceeding one year if it has been “set aside” under state law, § 921(a)(20). In Massachusetts, a youthful offender’s conviction is “set aside” when he is discharged from Department of Youth Services (“DYS”) custody. See Mass. Gen. Technological Has Made! Laws ch. 120, § 21. Gautier notes that for a level business coursework help one of the two indictments on essay which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and a level business coursework help, then discharged at age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the medcalf ACCA.
The ACCA, however, is not absolute in refusing to count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of civil rights expressly provides that the business coursework help person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Where a defendant’s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this “unless clause” is read to include restrictions applied by state statutory law. See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. Sample! 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier’s discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch. 120 § 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to a level coursework help, carry a firearm, id. at ch.
140 § 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a “conditional plea,” pleading guilty while preserving his legal arguments. For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the portrayal of women videos gun. He attempted to explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for a level coursework the trying the case.
17. Base offense level 24, minus 3 for acceptance of responsibility, and criminal history category IV.
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Guide to the Classics: Michel de Montaigne’s Essay. Montaigne: his free-ranging essays were almost scandalous in their day. Etienne Dumonstier/Wikimedia Commons. When Michel de Montaigne retired to his family estate in business help, 1572, aged 38, he tells us that he wanted to write his famous Essays as a distraction for his idle mind. He neither wanted nor expected people beyond his circle of portrayal of women essay friends to be too interested. His Essays’ preface almost warns us off: Reader, you have here an honest book; … in writing it, I have proposed to a level coursework, myself no other than a domestic and private end. I have had no consideration at all either to your service or to my glory … Thus, reader, I myself am the sample, matter of my book: there’s no reason that you should employ your leisure upon so frivolous and vain a subject. Therefore farewell.
The ensuing, free-ranging essays, although steeped in classical poetry, history and philosophy, are unquestionably something new in a level help, the history of york thesis Western thought. They were almost scandalous for coursework help their day. No one before Montaigne in the Western canon had thought to devote pages to subjects as diverse and seemingly insignificant as “Of Smells”, “Of the Custom of Wearing Clothes”, “Of Posting” (letters, that is), “Of Thumbs” or “Of Sleep” — let alone reflections on the unruliness of the of women in music, male appendage, a subject which repeatedly concerned him. French philosopher Jacques Ranciere has recently argued that modernism began with the opening up of the mundane, private and ordinary to artistic treatment. Modern art no longer restricts its subject matters to classical myths, biblical tales, the battles and dealings of Princes and prelates. French philosopher, Jacques Ranciere. Annette Bozorgan/Wikimedia Commons. If Ranciere is right, it could be said that Montaigne’s 107 Essays, each between several hundred words and a level business help (in one case) several hundred pages, came close to inventing modernism in the late 16th century. Montaigne frequently apologizes for writing so much about himself. He is only a second rate politician and thesis one-time Mayor of Bourdeaux, after all.
With an business almost Socratic irony, he tells us most about his own habits of writing in the essays titled “Of Presumption”, “Of Giving the Lie”, “Of Vanity”, and “Of Repentance”. But the sample ng resume, message of this latter essay is, quite simply, that non, je ne regrette rien , as a more recent French icon sang: Were I to a level business coursework, live my life over ng resume again, I should live it just as I have lived it; I neither complain of the past, nor do I fear the future; and if I am not much deceived, I am the a level, same within that I am without…I have seen the york, grass, the coursework, blossom, and the fruit, and now see the withering; happily, however, because naturally. Montaigne’s persistence in assembling his extraordinary dossier of stories, arguments, asides and observations on in music, nearly everything under the business coursework help, sun (from how to eric medcalf, parley with an enemy to whether women should be so demure in business coursework help, matters of sex, has been celebrated by admirers in nearly every generation. Within a decade of his death, his Essays had left their mark on Bacon and Shakespeare.
He was a hero to the enlighteners Montesquieu and Diderot. Voltaire celebrated Montaigne – a man educated only by his own reading, his father and ng resume his childhood tutors – as “the least methodical of all philosophers, but the wisest and most amiable”. Nietzsche claimed that the very existence of Montaigne’s Essays added to the joy of living in this world. More recently, Sarah Bakewell’s charming engagement with Montaigne, How to Live or a Life of Montaigne in One Question and Twenty Attempts at a level business coursework an Answer (2010) made the best-sellers’ lists. Even today’s initiatives in teaching philosophy in schools can look back to Montaigne (and his “On the Education of Children”) as a patron saint or sage . So what are these Essays, which Montaigne protested were indistinguishable from their author? (“My book and I go hand in hand together”). It’s a good question. Anyone who tries to read the Essays systematically soon finds themselves overwhelmed by the sheer wealth of examples, anecdotes, digressions and curios Montaigne assembles for our delectation, often without more than the hint of a reason why. To open the book is to venture into a world in which fortune consistently defies expectations; our senses are as uncertain as our understanding is prone to error; opposites turn out eric medcalf resume very often to be conjoined (“the most universal quality is business coursework help, diversity”); even vice can lead to essay assent, virtue. Many titles seem to have no direct relation to their contents. Nearly everything our author says in one place is a level help, qualified, if not overturned, elsewhere. Without pretending to untangle all of the knots of this “book with a wild and desultory plan”, let me tug here on a couple of Montaigne’s threads to invite and assist new readers to find their own way.
Philosophy (and writing) as a way of life. Some scholars argued that Montaigne began writing his essays as a want-to-be Stoic, hardening himself against the horrors of the French civil and ng resume religious wars, and his grief at the loss of his best friend Etienne de La Boetie through dysentery. Did Montaigne turn to the Stoic school of philosophy to deal with the horrors of war? Edouard Debat-Ponsan/Wikimedia Commons. Certainly, for Montaigne, as for a level coursework help ancient thinkers led by ian ker his favorites, Plutarch and the Roman Stoic Seneca, philosophy was not solely about constructing theoretical systems, writing books and articles. It was what one more recent admirer of Montaigne has called “a way of life”. Montaigne has little time for forms of business coursework pedantry that value learning as a means to insulate scholars from the world, rather than opening out onto it. Resume? He writes: Either our reason mocks us or it ought to business, have no other aim but our contentment. We are great fools. Ian Ker Essay Aid Grammar Assent? ‘He has passed over his life in idleness,’ we say: ‘I have done nothing today.’ What? have you not lived? that is not only the fundamental, but the most illustrious of a level coursework help all your occupations. One feature of the Essays is, accordingly, Montaigne’s fascination with the daily doings of men like Socrates and Cato the Younger; two of those figures revered amongst the ancients as wise men or “sages”. Their wisdom, he suggests, was chiefly evident in the lives they led (neither wrote a thing).
In particular, it was proven by the nobility each showed in facing their deaths. Socrates consented serenely to taking hemlock, having been sentenced unjustly to death by has made essay the Athenians. Cato stabbed himself to a level business coursework, death after having meditated upon Socrates’ example, in order not to cede to Julius Caesar’s coup d’etat . To achieve such “philosophic” constancy, Montaigne saw, requires a good deal more than book learning. Indeed, everything about portrayal of women essay, our passions and, above all, our imagination, speaks against achieving that perfect tranquillity the classical thinkers saw as the highest philosophical goal. We discharge our hopes and fears, very often, on the wrong objects, Montaigne notes, in an observation that anticipates the thinking of Freud and modern psychology.
Always, these emotions dwell on things we cannot presently change. Sometimes, they inhibit our ability to see and deal in a supple way with the changing demands of life. Philosophy, in this classical view, involves a retraining of our ways of thinking, seeing and being in the world. Montaigne’s earlier essay “To philosophise is to learn how to die” is business, perhaps the clearest exemplar of his indebtedness to this ancient idea of philosophy. Yet there is a strong sense in which all of the Essays are a form of what one 20th century author has dubbed “self-writing”: an eric medcalf resume ethical exercise to “strengthen and a level coursework help enlighten” Montaigne’s own judgement, as much as that of ng resume we readers: And though nobody should read me, have I wasted time in entertaining myself so many idle hours in so pleasing and useful thoughts? … I have no more made my book than my book has made me: it is a book consubstantial with the author, of a peculiar design, a parcel of business help my life… As for the seeming disorder of the product, and ian ker essay aid grammar assent Montaigne’s frequent claims that he is a level business coursework help, playing the sample ng resume, fool, this is arguably one more feature of the Essays that reflects his Socratic irony. A Level Coursework Help? Montaigne wants to leave us with some work to sample ng resume, do and scope to a level coursework help, find our own paths through the email, labyrinth of business coursework his thoughts, or alternatively, to pdf, bobble about on their diverting surfaces. Yet Montaigne’s Essays, for all of their classicism and their idiosyncrasies, are rightly numbered as one of the founding texts of modern thought.
Their author keeps his own prerogatives, even as he bows deferentially before the a level coursework help, altars of ancient heroes like Socrates, Cato, Alexander the Great or the Theban general Epaminondas. There is a good deal of the Christian, Augustinian legacy in email resume, Montaigne’s makeup. And of all the philosophers, he most frequently echoes ancient sceptics like Pyrrho or Carneades who argued that we can know almost nothing with certainty. This is a level, especially true concerning the “ultimate questions” the Catholics and Huguenots of technological progress has made us lazy essay Montaigne’s day were bloodily contesting. Michel de Montaigne.
Wikimedia Commons. Writing in a time of cruel sectarian violence, Montaigne is unconvinced by a level business the ageless claim that having a dogmatic faith is necessary or especially effective in assisting people to university thesis, love their neighbors: Between ourselves, I have ever observed supercelestial opinions and subterranean manners to be of singular accord… This scepticism applies as much to help, the pagan ideal of a perfected philosophical sage as it does to theological speculations. Socrates’ constancy before death, Montaigne concludes, was simply too demanding for most people, almost superhuman. As for technological has made Cato’s proud suicide, Montaigne takes liberty to doubt whether it was as much the product of Stoic tranquility, as of a level business coursework help a singular turn of mind that could take pleasure in such extreme virtue. Indeed when it comes to his essays “Of Moderation” or “Of Virtue”, Montaigne quietly breaks the ancient mold.
Instead of celebrating the feats of the world’s Catos or Alexanders, here he lists example after example of people moved by their sense of transcendent self-righteousness to acts of murderous or suicidal excess. Even virtue can become vicious, these essays imply, unless we know how to moderate our own presumptions. If there is one form of argument Montaigne uses most often, it is the essay aid grammar assent, sceptical argument drawing on a level, the disagreement amongst even the wisest authorities. If human beings could know if, say, the soul was immortal, with or without the resume pdf, body, or dissolved when we die…then the wisest people would all have come to business coursework help, the same conclusions by now, the argument goes. Yet even the eric resume, “most knowing” authorities disagree about such things, Montaigne delights in showing us. The existence of such “an infinite confusion” of opinions and customs ceases to be the problem, for Montaigne. It points the way to a new kind of solution, and could in a level, fact enlighten us. Documenting such manifold differences between customs and opinions is, for him, an education in humility: Manners and opinions contrary to mine do not so much displease as instruct me; nor so much make me proud as they humble me.
His essay “Of Cannibals” for instance, presents all of the different aspects of American Indian culture, as known to Montaigne through travellers’ reports then filtering back into Europe. For the most part, he finds these “savages’” society ethically equal, if not far superior, to that of war-torn France’s — a perspective that Voltaire and york university thesis Rousseau would echo nearly 200 years later. We are horrified at a level coursework the prospect of eating our ancestors. Yet Montaigne imagines that from the sample, Indians’ perspective, Western practices of a level business cremating our deceased, or burying their bodies to be devoured by the worms must seem every bit as callous. And while we are at it, Montaigne adds that consuming people after they are dead seems a good deal less cruel and inhumane than torturing folk we don’t even know are guilty of any crime whilst they are still alive… Voltaire celebrated Montaigne as one of the wisest and most amiable philosophers. Nicolas de Largillierre/Wikimedia Commons. “So what is essay assent, left then?”, the reader might ask, as Montaigne undermines one presumption after another, and business coursework piles up exceptions like they had become the only rule. A very great deal , is the answer. Ian Ker Aid Grammar? With metaphysics, theology, and the feats of godlike sages all under a “suspension of judgment”, we become witnesses as we read the a level help, Essays to in music, a key document in the modern revaluation and valorization of everyday life. There is, for instance, Montaigne’s scandalously demotic habit of interlacing words, stories and actions from his neighbors, the local peasants (and peasant women) with examples from the greats of Christian and pagan history.
As he writes: I have known in my time a hundred artisans, a hundred laborers, wiser and more happy than the business, rectors of the university, and whom I had much rather have resembled. By the end of the Essays, Montaigne has begun openly to suggest that, if tranquillity, constancy, bravery, and honor are the goals the wise hold up for us, they can all be seen in much greater abundance amongst the salt of the earth than amongst the rich and famous: I propose a life ordinary and without lustre: ‘tis all one…To enter a breach, conduct an embassy, govern a people, are actions of renown; to…laugh, sell, pay, love, hate, and gently and justly converse with our own families and university thesis with ourselves…not to give our selves the a level help, lie, that is rarer, more difficult and less remarkable… And so we arrive with these last Essays at a sentiment better known today from another philosopher, Friedrich Nietzsche, the portrayal of women, author of A Gay Science (1882) . Montaigne’s closing essays repeat the avowal that: “I love a gay and civil wisdom…” But in contrast to his later Germanic admirer, the music here is less Wagner or Beethoven than it is Mozart (as it were), and Montaigne’s spirit much less agonized than gently serene. It was Voltaire, again, who said that life is a tragedy for those who feel, and coursework help a comedy for those who think. Montaigne adopts and admires the comic perspective. As he writes in “Of Experience”: It is not of medcalf much use to go upon coursework stilts, for, when upon stilts, we must still walk with our legs; and when seated upon in music the most elevated throne in the world, we are still perched on business help, our own bums. Matthew Sharpe is an Associate Professor in Philosophy at ian ker essay aid grammar Deakin University.
This article was originally published on The Conversation. Read the original article. The Strange Question Chris Sacca Used to Build the Greatest Angel Portfolio Ever. Why the coursework help, US Doesn’t Understand Chinese Thought—and Must. The Two-Hour Rule: The Genius of Einstein, Darwin and thesis Nietzsche Applied. We noticed you're using an ad blocker. We get it: you like to have control of your own internet experience. But advertising revenue helps support our journalism. We'd really appreciate it. Below are steps you can take in order to whitelist Observer.com on your browser: Click the AdBlock button on your browser and select Don't run on pages on this domain . For Adblock Plus on Google Chrome:
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