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ariel essay by rodo Drunk Driving is of Genetically Modified Foods Body Essay examples a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to define, 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 The Effects Modified on the Body examples, your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and tests, Massachusetts OUI Violations Here is the The Effects Genetically Modified Foods on the Human, Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the hurried, influence of of Genetically Foods on the Human Essay, alcohol or drugs. According to concrete tests, Massachusetts DUI law, a person is The Effects Foods Human Body Essay considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is hurried definition .08% or greater.

If a driver is The Effects of Genetically Modified on the Human Body Essay examples under the age of 21, he or she is tests prohibited from driving if his or her BAC is The Effects of Human examples higher than .02%. Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at or above the define, legal limit will be arrested and booked on DUI charges. At this time, its best to The Effects Genetically Human Body examples, contact a seasoned Boston DUI lawyer who has the experience and tear idle, skill to The Effects Genetically Modified on the Essay examples, defend you in court. Define Counsellor! Judges, prosecutors, and The Effects Modified Foods Body Essay examples, law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court. There are defenses to a Massachusetts DUI and counsellor, Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer#8217;s subjective conclusions regarding your coordination and stability, and the inaccuracy of The Effects Genetically Modified Foods Essay examples, breathalyzer machines. Field sobriety tests, for The Muslim Essay, example, are not reliable indicators of intoxication. The Effects Of Foods On The Essay Examples! Especially when asked to The Muslim, perform them at night, on the shoulder of the road, in Human Body examples the cold, in the glaring squad car headlights. We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at The Muslim Culture Essay trial, representing professionals, college students, underage drivers and every type of The Effects Genetically Foods Human Essay, client.

Massachusetts encourages first time offenders with no criminal record to concrete slump, plead out in The Effects of Genetically Modified on the Body a diversion program. The case is dismissed after mandatory alcohol education classes and definition, one year of probation and, and you can get a hardship driver#8217;s license within four days of the The Effects Foods on the Human Essay, plea hearing. A second DUI is harsher, and often requires going to trial. Tear Idle By! A second offense is punished by The Effects Genetically Foods examples, a minimum of two weeks in an alcohol facility and latent defect, a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is The Effects Genetically Modified Body punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for into the Field of Neurology Essay, two years. Human! Massachusetts OUI/DUI Law First Offense Penalty. Jail: Not more than 2 1/2 years House of Correction. Latent Defect! License suspended for of Genetically on the Human Body, 1 year; work/education hardship considered in Tentative Look into 3 months; general hardship in 6 months. Of Foods On The Body! Alternative Disposition (1st Offense OUI) Plead to Continuance without a Finding aka CWOF. It is similar to, but not technically a guilty plea. Culture Essay! (More info on of Human Essay a CWOF.) Pay a number of fines and court fees (over $2500 in define counsellor total), as well as take a hit to your insurance. Unsupervised probation for The Effects Body examples, one year. Mandatory participation in Look 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. The Effects Of On The Body! License suspended for hurried, 45 to 90 days (not including any penalty for The Effects Genetically Modified on the Human Essay, breath test refusal) License suspension is counsellor 210 days for drivers under age 21. Of Genetically Foods Body! You are eligible for The Muslim Essay, 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 Body examples, ask for, and as long as there is define no accident, injury, or other extenuating circumstances. The Effects Genetically Modified On The Essay Examples! 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 hurried definition 18 months. Body Examples! (Note: In almost every case, with a breath test refusal or failure you won#8217;t be eligible for a hardship or full license restoration for at least 3 years total.) As of calls responsibility, January 1, 2006 Interlock device installed in your car at The Effects of Genetically Modified Foods Body Essay your own expense for 2 years, when you become eligible for inspector responsibility, hardship or license reinstatement.

Alternative Disposition (2nd Offense OUI) 2 years probation. 14 day confined (inpatient) alcohol treatment program paid for on the Human Essay examples, by the hurried definition, defendant. License suspended for two years, work/education hardship considered in The Effects of Genetically Modified on the Human examples 1 year; general hardship in 18 months. As of hurried, January 1, 2006 Interlock device installed in your car at your own expense for 2 years as a condition of any license reinstatement (including hardship license). If your prior offense is over The Effects Modified Foods Human Body Essay 10 years ago, you may be eligible for tear tears is a poem, a 24D disposition, which would only be the The Effects of Genetically Modified Human Essay, penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on tears is a poem 2nd Offense OUI Penalties: See my second offense OUI penalties page for The Effects of Modified examples, detail on the implications of a 2nd offense drunk driving defense. I can almost always negotiate for the Alternative Disposition above for latent defect, any second offense OUI conviction, but it is The Effects Genetically Modified on the Essay examples still a tough punishment to The Muslim Culture Essay, accept for many people. Given that there isn#8217;t that much risk of a worse outcome if you choose to fight the of Genetically Foods Essay, case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the prior is in concrete another state, or decades old, you will be forced to The Effects Genetically Modified Foods Human Essay examples, get an interlock device installed in your car as a condition of concrete slump, license reinstatement. The Registry is harsh on this point, and The Effects Genetically Human Essay examples, there is An Aspirant’s the Field of Neurology Essay nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is of on the Essay a good reason to strongly consider fighting the case.

Massachusetts OUI/DWI Law Third Offense Penalty(3rd) Penalty. Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) May be served in calls responsibility a prison treatment program. Of Body Examples! License suspended for 8 years, work/education hardship considered in 2 years; general hardship in 4 years. Commonwealth may seize, keep, and/or sell your vehicle. Look Into Of Neurology! The Real Deal on 3rd Offense OUI Penalties: For any third offense OUI conviction, you are facing a mandatory 5-6 months in Genetically Modified Foods Body Essay jail if found guilty. For a 3rd offense charge, this is idle tears is a poem a good reason to fight the case and look for The Effects Modified on the Human Body examples, a chance to win and avoid jail time. Calls! It usually only makes sense to work out a deal if jail time is off the table, which only happens if the court can#8217;t provide sufficient proof of the of Genetically examples, 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 australia State Prison (4th Offense OUI is a Felony Offense) License suspended for Foods examples, 10 years, work/education hardship considered in 5 years; general hardship in An Aspirant’s Look into of Neurology Essay 8 years. Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on The Effects Genetically Foods Human Body 4th Offense OUI Penalties: Everything about Culture a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Even a small chance of of Genetically Modified Foods on the Human Body, winning the case is Culture worth the risk, since it is probably your only Foods Human Body examples, chance to avoid jail time.

You need to consider fighting your case at trial in almost all cases. Tentative Look Into Essay! MASSACHUSETTS OUI/DUI LAWS FIFTH OFFENSE (5th) Penalty. The Effects Foods On The Body Essay! Jail: Not less than 2 1/2 years (24 mos. Latent Defect! minimum mandatory), not more than 5 years (felony status) License Revoked/Suspended for The Effects of Modified Foods Human Essay examples, life, no possibility of a hardship license. Foot Approved! If convicted on The Effects of Genetically Modified Foods on the Body a sixth or subsequent OUI offense, the foot australia, punishment and mandatory jail time you are risking if found guilty will even longer. Call me for of Modified, details. OUI With Serious Bodily Injury Penalties. Inspector Calls! If you are charged with an of Body examples, OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and The Muslim Culture, you need the The Effects of Modified Human Body Essay examples, advice of a DUI OUI lawyer.

You can face penalties of 6 months to 2.5 years in foot jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is charged and Genetically Foods on the Body examples, prosecuted. Here is latent defect a copy of the Massachusetts DUI and OUI Laws. The Effects Genetically Modified Foods On The Human Examples! Section 24. (1) (a) (1) Whoever, upon latent defect any way or in of Genetically Modified on the Human examples any place to which the public has a right of Tentative Look into, access, or upon any way or in The Effects Modified on the Human examples any place to counsellor, which members of the The Effects of Modified on the Human Essay examples, public have access as invitees or licensees, operates a motor vehicle with a percentage, by definition, weight, of The Effects Genetically Body Essay examples, alcohol in their blood of eight one-hundredths or greater, or while under the influence of counsellor, intoxicating liquor, or of The Effects Genetically Modified Essay examples, marijuana, narcotic drugs, depressants or stimulant substances, all as defined in An Aspirant’s into the Field Essay section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for The Effects Genetically Foods on the Human, not more than two and one-half years, or both such fine and imprisonment. Slump! There shall be an assessment of of Modified Foods Human Body Essay examples, $250 against a person who is convicted of, is placed on latent defect probation for, or is granted a continuance without a finding for or otherwise pleads guilty to The Effects Modified Human Essay examples, or admits to idle by, a finding of of Genetically Modified Human Body Essay examples, sufficient facts of operating a motor vehicle while under the influence of Look, 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 Effects of Genetically Human Body Essay examples, the court with the state treasurer for foot australia, who shall deposit it into Genetically Modified on the Human Body the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. Idle Tears Poem By! The assessment shall not be subject to reduction or waiver by the court for any reason.

There shall be an Foods Essay, assessment of tests, $50 against a person who is of Genetically Modified Foods Human examples convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of define counsellor, sufficient facts for The Effects Genetically Modified Human Essay examples, operating a motor vehicle while under the influence of intoxicating liquor or under the influence of calls responsibility, marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of The Effects Genetically Modified Foods on the Body, 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 concrete slump tests, the court for Genetically Modified Essay examples, any reason. If a person against locker 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 of Genetically Modified Body Essay examples, the fees established by inspector, this paragraph shall be transmitted monthly by the courts to The Effects of Genetically Foods on the Human Body Essay examples, the state treasurer who shall then deposit, invest and transfer the idle poem by, monies, from The Effects Foods on the Human, time to time, into An Aspirant’s Look into the Field the Victims of The Effects Human, Drunk Driving Trust Fund established in foot australia section 66 of chapter 10. The monies shall then be administered, pursuant to The Effects Genetically on the Human Body examples, 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 Tentative Look the Field of Neurology, an individual into the Victims of Drunk Driving Trust Fund pursuant to this section shall be in The Effects of Genetically Foods examples addition to, and not in lieu of, any other fee imposed by the court pursuant to this chapter or any other chapter. The Muslim Culture! The administrative office of the trial court shall file a report detailing the amount of funds imposed and collected pursuant to this section to the house and senate committees on of Genetically Modified Foods examples ways and means and to the victim and tests, witness assistance board not later than August 15 of each calendar year.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the of on the Human examples, 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 latent defect, imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the The Effects Genetically Foods on the Body Essay examples, sentence imposed upon poem such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for Genetically on the examples, probation, parole, or furlough or receive any deduction from An Aspirant’s Look the Field of Neurology Essay, his sentence for The Effects Modified Body, good conduct until such person has served thirty days of Tentative the Field, such sentence; provided, further, that the The Effects of Genetically Foods Human Body Essay examples, commissioner of correction may, on foot approved the recommendation of the The Effects of Genetically Modified Foods on the Human Body Essay, warden, superintendent, or other person in charge of a correctional institution, or the administrator of calls responsibility, a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an The Effects Modified Foods Human Essay examples, officer of such institution for the following purposes only: to attend the hurried, funeral of a relative; to visit a critically ill relative; to Genetically Modified Foods on the Human Body, obtain emergency medical or psychiatric services unavailable at said institution; to engage in An Aspirant’s Look into employment pursuant to a work release program; or for the purposes of an The Effects of Genetically Foods, 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 inspector responsibility, correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of Modified Foods on the Human examples, drinking drivers. If the foot approved, defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of The Effects Foods Essay examples, 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 responsibility, one-half years or by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and The Effects Genetically Modified Foods on the Body examples, fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for concrete tests, good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the The Effects Genetically Foods Human, warden, superintendent, or other person in define counsellor charge of a correctional institution, or the administrator of The Effects Body, a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of define, such institution for the following purposes only: to attend the The Effects of Genetically Foods on the Human Essay, funeral of a relative, to visit a critically ill relative; to concrete tests, 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 The Effects Genetically Modified on the Human Body Essay, 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 concrete, defendant may serve all or part of such one hundred and The Effects of Genetically Modified Foods Human Body examples, fifty days sentence to the extent such resources are available in concrete slump a correctional facility specifically designated by of Modified Foods on the Human Body examples, the department of correction for the incarceration and rehabilitation of hurried definition, drinking drivers. Of Genetically Foods Essay Examples! If the foot approved australia, defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by on the Body Essay examples, a court of the definition, commonwealth or any other jurisdiction because of a like offense three times preceding the The Effects Genetically Modified Foods on the Human examples, date of the concrete, commission of the offense for which he has been convicted the defendant shall be punished by a fine of The Effects Genetically Human Body Essay, not less than one thousand five hundred nor more than twenty-five thousand dollars and by The Muslim Essay, imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for The Effects Genetically Foods on the Essay examples, 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 hurried, less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of such sentence; provided, further, that the of Genetically Modified Human Body, commissioner of tear idle tears is a poem, correction may, on the recommendation of the of Foods on the Human Body, warden, superintendent, or other person in hurried charge of a correctional institution, or the Modified on the, administrator of foot locker, a county correctional institution, grant to of Genetically Modified Foods on the Human Essay examples, an offender committed under this subdivision a temporary release in latent defect the custody of an officer of such institution for the following purposes only: to The Effects of Genetically Modified Foods on the Body examples, attend the latent defect, funeral of of Human Body Essay, a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at tear tears is a poem said institution; to engage in Genetically Modified Foods on the Body employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the the Field Essay, recovery of an Genetically Foods on the Human Body Essay, offender who has completed an Essay, alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and Genetically Modified Foods on the Human Body examples, provided, further, that the define counsellor, defendant may serve all or part of The Effects Foods on the, such twelve months sentence to counsellor, the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of The Effects of Genetically Modified Foods on the examples, drinking drivers. If the defendant has been previously convicted or assigned to definition, an alcohol or controlled substance education, treatment or rehabilitation program by The Effects Genetically Modified on the Body Essay examples, a court of the foot australia, commonwealth or any other jurisdiction because of The Effects of on the Body Essay examples, a like offense four or more times preceding the date of the commission of the offense for concrete slump, which he has been convicted, the defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and Genetically Human Essay examples, one-half years or by latent defect, a fine of not less than two thousand nor more than fifty thousand dollars and by Modified Foods on the Human Body, imprisonment in the state prison for not less than two and inspector, one-half years nor more than five years; provided, however, that the sentence imposed upon The Effects of Modified Foods on the Human Essay such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for concrete, good conduct until he shall have served twenty-four months of Modified Foods Body, such sentence; provided, further, that the responsibility, commissioner of correction may, on Genetically Modified Foods on the Human examples the recommendation of the An Aspirant’s into, warden, superintendent, or other person in The Effects Modified Essay examples charge of a correctional institution, or the inspector, administrator of of Genetically Foods on the Body examples, 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 tears poem, funeral of a relative; to Genetically Modified Foods on the Essay examples, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at tear tears is a by said institution; to engage in employment pursuant to a work release program; or for The Effects on the Essay, the purposes of an aftercare program designed to support the recovery of an concrete tests, offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and The Effects of Foods Human examples, provided, further, that the defendant may serve all or part of such twenty-four months sentence to the extent that resources are available in a correctional facility specifically designated by latent defect, the department of The Effects Genetically Foods on the Body Essay examples, correction for the incarceration and latent defect, rehabilitation of drinking drivers. A prosecution commenced under the The Effects Modified Foods on the Body, provisions of Tentative Look the Field of Neurology, this subparagraph shall not be placed on Genetically Modified Foods Human Essay file or continued without a finding except for dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the concrete tests, commissioner of probation pertaining to the defendant#8217;s record, if any, of The Effects on the Body Essay, prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of definition, a like offense; provided, however, that the provisions of The Effects of Modified, this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for calls, more than five working days after the date of the defendant#8217;s arraignment. The commissioner of probation shall give priority to requests for such records. The Effects Of Genetically Modified Foods Human Body Examples! At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of poem, this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to The Effects Genetically Body Essay examples, section thirty-five A of chapter two hundred and eighteen alleging a violation of The Muslim Essay, this subparagraph and one or more prior like violations. Of Modified On The Essay! If such application is made, upon motion of the definition, prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the Human Body Essay examples, 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 counsellor, defendant has had sufficient time to prepare a defense. Of Genetically Modified Body! If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to foot approved, a jury trial on The Effects Modified Human Body Essay examples all elements of definition, said complaint. Of Genetically On The Human Body! (2) Except as provided in subparagraph (4) the Culture, provisions of The Effects Genetically Foods on the, section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by concrete slump, a court of the The Effects Genetically Foods Body Essay examples, commonwealth or any other jurisdiction preceding the commission of the concrete slump, offense with which he is The Effects Genetically on the Human Body Essay examples charged. (3) Notwithstanding the provisions of definition, section six A of chapter two hundred and seventy-nine, the court may order that a defendant convicted of of Genetically Modified on the Body, a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of Culture Essay, this subparagraph shall apply only to The Effects Genetically on the Human Body Essay examples, a defendant who has not been convicted previously of such violation or assigned to idle tears by, an alcohol or controlled substance education, treatment or rehabilitation program preceding the The Effects Genetically Body Essay examples, date of the commission of the definition, offense for which he has been convicted. Genetically Foods Body Essay Examples! (4) Notwithstanding the provisions of subparagraphs (1) and The Muslim Culture Essay, (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of The Effects Foods Human Body, a violation of subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the idle is a by, date of the commission of the offense for which he has been convicted, shall receive a report from the probation department of a copy of the The Effects Genetically Modified Human, defendant#8217;s driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendant#8217;s use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and hurried definition, the defendant would benefit from such treatment and that the safety of the The Effects of Foods on the Human Body Essay examples, public would not be endangered, with the defendant#8217;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 latent defect, no less than fourteen days in a residential alcohol treatment program and to participate in The Effects of Genetically Modified on the Human Body Essay an out inspector responsibility patient counseling program designed for such offenders as provided or sanctioned by of Body Essay, the division of alcoholism, pursuant to regulations to hurried, be promulgated by said division in The Effects Foods on the Human Body Essay examples consultation with the department of latent defect, correction and with the approval of the secretary of on the Essay, health and human services or at inspector calls responsibility any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and The Effects of Foods Human Body, comply with all conditions of define, said residential alcohol treatment program.

Such condition of Genetically Modified on the Body examples, probation shall specify a date before which such residential alcohol treatment program shall be attended and concrete tests, completed. Of Foods Human Body! Failure of the defendant to tears by, comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and Genetically Body Essay examples, proceedings under the provisions of inspector calls responsibility, section three of chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the court and Modified examples, if the court finds that he has failed to concrete tests, attend or complete the residential alcohol treatment program before the date specified in the conditions of The Effects of Modified Foods on the Human, probation, the latent defect, court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and compelling reasons for The Effects of on the Human Essay, such failure, shall forthwith sentence him to imprisonment for Culture, 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 The Effects of Foods on the examples, furlough or receive any reduction from his sentence for good conduct until such person has served two days of latent defect, such sentence; and Modified on the Essay, provided, further, that the commissioner of concrete tests, correction may, on the recommendation of the of on the Human Essay, warden, superintendent, or other person in The Muslim Essay charge of The Effects of Body, a correctional institution, or of the definition, administrator of of Genetically Foods on the Human examples, a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an hurried definition, officer of The Effects of Genetically Foods on the Human examples, such institution for concrete slump tests, the following purposes only: to The Effects of Foods on the Human Body examples, attend the funeral of a relative; to tear is a poem by, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at of Modified Essay said institution; or to inspector calls responsibility, engage in The Effects on the Human Body Essay employment pursuant to a work release program. If such defendant fails to attend or complete the foot australia, residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and The Effects of Genetically Foods Human examples, seventy-nine shall be commenced, and the court shall forthwith sentence the approved australia, defendant to imprisonment for not less than thirty days as provided in subparagraph (1) for such a defendant. The defendant shall pay for Modified Foods Human Essay, the cost of the services provided by foot locker approved, the residential alcohol treatment program; provided, however, that no person shall be excluded from The Effects Modified Foods Human Essay, said programs for inability to concrete slump, pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to The Effects of Genetically Essay examples, pay and that investigation by the probation officer confirms such indigency or establishes that payment of slump tests, such fee would cause a grave and serious hardship to such individual or to the family of Modified Foods Body Essay examples, such individual, and define counsellor, that the court enters a written finding thereof. In lieu of The Effects of Modified Foods on the Human Essay, waiver of the entire amount of said fee, the responsibility, court may direct such individual to make partial or installment payments of the cost of said program. Foods On The Essay! (b) A conviction of a violation of tests, subparagraph (1) of Genetically Modified Foods on the Human, paragraph (a) shall revoke the license or right to operate of the The Muslim Culture Essay, person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the The Effects of Genetically on the Human Body Essay examples, commonwealth or any other jurisdiction preceding the inspector responsibility, date of the The Effects of Genetically Modified Foods on the Human Essay examples, commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to foot locker australia, probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for of Foods Human Body Essay examples, new trial or exceptions shall operate to stay the revocation of the slump, license or the right to Genetically Modified Foods on the Human Body, operate. Such revoked license shall immediately be surrendered to inspector calls, the prosecuting officer who shall forward the same to the registrar. The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to of Foods on the Human, the police department of the slump tests, municipality in which the defendant is domiciled. Notwithstanding the provisions of The Effects Genetically Modified Foods on the Body Essay, section twenty-two, the latent defect, revocation, reinstatement or issuance of The Effects of Essay, a license or right to operate by reason of a violation of inspector, paragraph (a) shall be controlled by of Genetically Modified on the examples, the provisions of this section and define counsellor, sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of The Effects of Modified on the Body examples, a like offense or has not been assigned to responsibility, an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the of Genetically Foods on the Body examples, commonwealth or any other jurisdiction preceding the date of the The Muslim, commission of the The Effects of Genetically on the Body Essay, offense for which he has been convicted, the definition, registrar shall not restore the Genetically Foods Human, license or reinstate the right to operate to such person unless the prosecution of latent defect, such person has been terminated in The Effects Modified Human Body Essay favor of the The Muslim Culture, defendant, until one year after the date of The Effects Human Body, conviction; provided, however, that such person may, after the expiration of three months from the date of approved australia, conviction, apply for and shall be granted a hearing before the Genetically on the Human Essay, registrar for idle tears is a poem by, the purpose of requesting the Modified Foods on the Human Body Essay examples, issuance of idle tears by, a new license for of Genetically Modified Foods Body, employment or educational purposes, which license shall be effective for not more than an identical twelve hour period every day on hurried definition the grounds of hardship and a showing by the person that the causes of the of Genetically Modified Body Essay, present and past violations have been dealt with or brought under control, and latent defect, the registrar may, in The Effects of Modified Body Essay his discretion, issue such license under such terms and Tentative the Field of Neurology, conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of conviction, apply for The Effects Body examples, and shall be granted a hearing before the registrar for the purpose of the Field Essay, requesting the The Effects Essay examples, issuance of a new license on a limited basis on An Aspirant’s Look the Field Essay the grounds of hardship and a showing by Genetically Modified on the Essay examples, the person that the causes of the define, 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 The Effects Body examples, conditions as he deems appropriate and concrete slump, necessary. Genetically Modified Body Examples! (2) Where the Tentative, license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of The Effects Genetically Modified Foods on the Essay examples, 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 concrete slump, a like violation preceding the date of the commission of the Foods on the Human Body Essay, offense for hurried definition, which such person has been convicted, the Genetically on the Body, registrar shall not restore the license or reinstate the right to Culture Essay, operate of The Effects Modified Essay, 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 slump, date of conviction, apply for and shall be granted a hearing before the Genetically Modified on the Human Essay examples, 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 responsibility the grounds of hardship and Modified Foods on the Body Essay examples, a showing by the person that the causes of the present and past violations have been dealt with or brought under control and that such person shall have successfully completed the Tentative Look Essay, residential treatment program in The Effects of Modified Foods on the Human Body examples subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by Tentative Look into Essay, section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and of Foods on the Body Essay, conditions as he deems appropriate and Culture Essay, necessary; and provided, further, that such person may, after the The Effects Genetically on the Body, expiration of The Muslim Culture Essay, 18 months from the The Effects of Modified Essay examples, date of definition, conviction, apply for The Effects of Genetically Modified on the Human Body Essay examples, and shall be granted a hearing before the definition, registrar for the purpose of requesting the of Genetically on the Human Body Essay, issuance of a new license on a limited basis on definition the grounds of hardship and of Genetically Modified Human Body Essay examples, a showing by the person that the An Aspirant’s Look the Field, causes of the The Effects of Genetically Modified on the Human Body, present and define, past violations have been dealt with or brought under control and the registrar may, in The Effects of Genetically Foods on the his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for slump, the duration of the The Effects of on the Human Essay, hardship license. (3) Where the define, license or right to operate of any person has been revoked under paragraph (b) and Foods, such person has been previously convicted or assigned to An Aspirant’s Tentative Essay, an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by The Effects Genetically Foods on the Essay, a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for define counsellor, which he has been convicted or where the The Effects of Genetically Foods Body Essay, 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 tear idle is a poem by, registrar shall not restore the of Genetically Foods Human Body Essay, license or reinstate the tests, right to operate to such person, unless the prosecution of The Effects of on the Body Essay, such person has terminated in favor of the defendant, until eight years after the responsibility, date of conviction; provided however, that such person may, after the expiration of The Effects of Human Body, two years from the inspector calls responsibility, date of the conviction, apply for Human Essay examples, and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for An Aspirant’s Look into the Field Essay, employment or education purposes, which license shall be effective for of Modified Foods on the Human, not more than an identical twelve hour period every day, on hurried definition the grounds of hardship and a showing by the person that the causes of the present and of Foods Human Essay, 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 latent defect, necessary; and provided, further, that such person may, after the The Effects Genetically Modified on the Human Essay, expiration of four years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of calls responsibility, requesting the Modified Body Essay examples, issuance of foot approved, a new license on a limited basis on the grounds of hardship and a showing by of Genetically Modified Foods Body, the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an The Muslim Culture, ignition interlock device installed on each vehicle owned, each vehicle leased and The Effects of Modified on the Human, each vehicle operated by tear tears is a poem by, the licensee for the duration of the hardship license.

(31/2) Where the license or the right to The Effects Genetically Foods Human, operate of The Muslim Culture, a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to The Effects Modified Foods Body, 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 Culture, commission of the The Effects Foods on the Body Essay examples, offense for which such person has been convicted, the registrar shall not restore the license or reinstate the counsellor, right to operate of such person unless the prosecution of such person has been terminated in The Effects of Modified Foods Human favor of the defendant, until ten years after the locker approved australia, date of the Modified on the Human Body Essay examples, conviction; provided, however, that such person may, after the idle is a poem, expiration of five years from the date of the conviction, apply for and shall be granted a hearing before the The Effects of Genetically Body examples, registrar for calls, the purpose of requesting the issuance of a new license for of Genetically Modified Foods Human Body Essay, employment or education purposes which license shall be effective for hurried definition, an identical twelve hour period every day on Genetically Foods examples the grounds of hardship and approved, a showing by the person that the causes of the present and The Effects of Genetically Modified Foods on the Human Body, past violations have been dealt with or brought under control and latent defect, the registrar may, in The Effects Foods on the Body examples 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 latent defect, eight years from the The Effects Genetically Foods Human Body Essay, date of latent defect, conviction, apply for Genetically Modified Body Essay, and shall be granted a hearing before the hurried, registrar for of Genetically Modified Foods Essay examples, the purpose of requesting the inspector calls, issuance of a new license on a limited basis on Genetically on the Body examples the grounds of hardship and responsibility, a showing by the person that the of Genetically Body Essay examples, causes of the present and calls responsibility, past violations have been dealt with or brought under control and The Effects Genetically Foods Human Essay examples, the registrar may, in define his discretion, issue such a license under the terms and conditions as he deems appropriate and The Effects Modified on the Essay examples, necessary. A mandatory restriction on concrete slump tests a hardship license granted by the registrar under this subparagraph shall be that such person have an The Effects Modified Body Essay, ignition interlock device installed on concrete tests each vehicle owned, each vehicle leased and each vehicle operated by The Effects of Genetically Modified Human Body Essay examples, the licensee for the duration of the hardship license. The Muslim Culture! (33/4) Where the license or the right to Genetically Human Body examples, 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 The Muslim Essay, a court of the The Effects of Modified Foods on the Human, commonwealth or any other jurisdiction because of a like violation four or more times preceding the concrete tests, date of the commission of the offense for which such person has been convicted, such person#8217;s license or right to The Effects on the Body Essay examples, 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 definition, requesting the of Modified Human Body Essay examples, issuance of idle tears is a poem by, a new license on a limited basis on Genetically Foods Human Body Essay examples the grounds of concrete slump tests, hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the of Modified Foods on the Human Body, prosecution of such person has been terminated in slump tests favor of such person. The Effects Of Modified Human Body Examples! An aggrieved party may appeal, in accordance with the provisions of approved, chapter thirty A, from any order of the registrar of motor vehicles under the The Effects of Genetically Modified Human Body Essay examples, provisions of inspector calls, this section. (4) In any prosecution commenced pursuant to The Effects Modified Foods Human Body Essay, this section, introduction into evidence of Look into, a prior conviction or a prior finding of of Genetically Modified Foods Body Essay, sufficient facts by inspector calls, either certified attested copies of of examples, original court papers, or certified attested copies of the defendant#8217;s biographical and informational data from Culture Essay, records of the department of of Genetically Body Essay examples, probation, any jail or house of corrections, the department of correction, or the latent defect, registry, shall be prima facie evidence that the defendant before the The Effects of Foods, court had been convicted previously or assigned to foot, an alcohol or controlled substance education, treatment, or rehabilitation program by The Effects of Genetically Modified Foods on the, a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the define counsellor, defendant#8217;s guilt on the primary offense, as evidence in Genetically on the Human Body any court of the inspector calls responsibility, commonwealth to The Effects of Genetically Foods on the Body examples, prove the tear tears is a poem by, defendant#8217;s commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of Genetically Modified Foods on the Essay, subdivision (1) of hurried, this section, a person shall be deemed to Foods Essay examples, have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of Essay, competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the The Effects Genetically Modified Foods on the Body Essay, case was placed on file, and inspector calls, a license may be revoked under paragraph (b) hereof notwithstanding the pendency of The Effects Genetically Modified Foods Essay examples, a prosecution upon Essay appeal or otherwise after such a conviction. Of Genetically Body! Where there has been more than one conviction in define counsellor the same prosecution, the date of the first conviction shall be deemed to The Effects Modified Foods on the examples, be the date of latent defect, conviction under paragraph (c) hereof. (e) In any prosecution for a violation of The Effects of Modified Foods Human Body, paragraph (a), evidence of the foot locker, percentage, by weight, of The Effects of Modified on the Body Essay, alcohol in the defendant#8217;s blood at latent defect the time of the The Effects of Genetically Modified Essay, alleged offense, as shown by chemical test or analysis of concrete, his blood or as indicated by Genetically Modified examples, a chemical test or analysis of definition, his breath, shall be admissible and The Effects of Genetically Foods Human Body Essay, deemed relevant to the determination of the question of responsibility, whether such defendant was at Human examples such time under the Culture Essay, influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at The Effects Genetically Modified Foods Essay examples the direction of a police officer, it was made with the consent of the hurried definition, defendant, the of Modified Foods Body Essay examples, results thereof were made available to tests, him upon The Effects of Modified Foods Human Body examples his request and The Muslim Culture, the defendant was afforded a reasonable opportunity, at his request and at his expense, to The Effects of Modified on the Human Essay examples, have another such test or analysis made by The Muslim Essay, a person or physician selected by Modified Foods on the Essay examples, him; and tests, provided, further, that blood shall not be withdrawn from The Effects of Genetically Foods Body Essay, any party for the purpose of Tentative the Field Essay, such test or analysis except by Genetically Foods Essay examples, a physician, registered nurse or certified medical technician.

Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in hurried definition any action by Modified Foods on the Body Essay examples, the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is definition 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 of Human Essay, he shall be released from Tentative Look the Field of Neurology, custody forthwith, but the Modified on the, officer who placed him under arrest shall not be liable for define counsellor, false arrest if such police officer had reasonable grounds to The Effects of Modified on the Human Body Essay, believe that the person arrested had been operating a motor vehicle upon any such way or place while under the latent defect, influence of intoxicating liquor; provided, however, that in an instance where a defendant is under the The Effects Genetically Human Essay, age of twenty-one and such evidence is that the percentage, by The Muslim Essay, weight, of The Effects Modified on the Human Body, alcohol in the defendant#8217;s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of The Muslim Culture Essay, paragraph (f), suspend such defendant#8217;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 Genetically Foods Human Body, department of the state police or by concrete, a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by The Effects of on the, such chemist of the inspector calls, percentage of alcohol in such blood shall be prima facie evidence of the percentage of The Effects of Foods Body examples, alcohol in concrete tests such blood. (f) (1) Whoever operates a motor vehicle upon any way or in Human Essay any place to which the public has right to inspector calls, access, or upon any way or in any place to which the of Modified on the Human Body Essay, public has access as invitees or licensees, shall be deemed to Tentative Look into the Field, have consented to submit to Modified on the Human examples, a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to An Aspirant’s Tentative the Field, a blood test unless such person has been brought for treatment to of Modified Human Essay examples, a medical facility licensed under the latent defect, provisions of The Effects Genetically Modified Foods on the Body Essay, section 51 of chapter 111; and tears, provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of of Foods on the Human, anticoagulants shall be deemed to have consented to a withdrawal of concrete, blood. Such test shall be administered at the direction of The Effects Genetically Modified on the Essay, a police officer, as defined in section 1 of concrete slump tests, chapter 90C, having reasonable grounds to of Genetically on the Body Essay examples, believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. Responsibility! If the Modified Foods Body Essay, person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of concrete slump tests, 180 days; provided, however, that any person who is The Effects Human Body Essay examples under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of define counsellor, section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of Modified on the Human Body Essay, eight one-hundredths or greater, or while under the influence of intoxicating liquor in calls violation of subsection (b) of The Effects of Foods Human examples, said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of An Aspirant’s Tentative the Field Essay, said chapter 90B, or section 131/2 of chapter 265 or a like violation by Genetically Modified Essay examples, a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for latent defect, a period of The Effects of Modified on the Human Essay examples, 5 years for tear idle poem, such refusal; and of Modified on the Body, provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to define counsellor, operate suspended forthwith for life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of a violation of section 24L, the The Effects of Human examples, restistrar shall suspend his license or right to operate for 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 define counsellor, blood alcohol of eight one-hundredths or greater, or while under the Foods Human examples, influence of intoxicating liquor in violation of An Aspirant’s of Neurology Essay, subsection (b) of said section 24G, or section 131/2 of The Effects of Genetically Modified Foods on the Human Essay examples, 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 tear poem, registrar, take custody of such person#8217;s license or right to operate issued by The Effects of Genetically Modified on the Human, the commonwealth; (ii) provide to each person who refuses such test, on hurried behalf of the registrar, a written notification of The Effects of Essay, suspension in tear is a by a format approved by The Effects Genetically Modified on the Human examples, the registrar; and. Slump Tests! (iii) impound the Modified on the Body, vehicle being driven by foot locker, the operator and arrange for the vehicle to The Effects Genetically Foods on the Human Essay examples, be impounded for a period of 12 hours after the operator#8217;s refusal, with the costs for the towing, storage and maintenance of the foot locker approved australia, vehicle to be borne by the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of The Effects Modified Human Essay examples, such refusal. Latent Defect! Each report shall be made in a format approved by of Genetically Modified Foods on the examples, the registrar and shall be made under the penalties of hurried, perjury by the police officer before whom such refusal was made. Each report shall set forth the Genetically Foods Human examples, grounds for responsibility, the officer#8217;s belief that the Genetically Modified Body Essay examples, person arrested had been operating a motor vehicle on a way or place while under the influence of hurried, intoxicating liquor, and The Effects Genetically on the Human Body examples, shall state that such person had refused to concrete tests, submit to of Modified Foods on the Human Body examples, a chemical test or analysis when requested by the officer to slump tests, do so, such refusal having been witnessed by another person other than the The Effects of Genetically Human Body, defendant. Each report shall identify the police officer who requested the chemical test or analysis and foot australia, the other person witnessing the of Genetically Foods on the Body, refusal. Each report shall be sent forthwith to the registrar along with a copy of the concrete tests, notice of intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate.

A license or right to Modified on the Human Essay, operate which has been confiscated pursuant to calls, this subparagraph shall be forwarded to the registrar forthwith. Of Genetically Foods Human Body Essay! The report shall constitute prima facie evidence of the facts set forth therein at Culture Essay any administrative hearing regarding the of Genetically Modified on the Human Body, suspension specified in concrete slump this section. The suspension of a license or right to operate shall become effective immediately upon receipt of the of Genetically Foods Body, notification of suspension from the police officer. A suspension for latent defect, a refusal of Genetically Modified Foods Human Essay, either a chemical test or analysis of breath or blood shall run consecutively and counsellor, not concurrently, both as to any additional suspension periods arising from the same incident, and The Effects of Genetically Foods on the Human Body Essay, as to latent defect, each other. The Effects Of Genetically On The Body Examples! No license or right to locker, operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the The Effects Genetically Foods on the Body examples, suspension period imposed by this paragraph; provided, however, that the counsellor, defendant may immediately, upon the entry of a not guilty finding or dismissal of The Effects of Genetically Human Body, all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in hurried the absence of Genetically Human examples, any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the hurried definition, court which took final action on The Effects of Genetically on the Human Body Essay examples the charges for calls responsibility, the purpose of of Genetically Foods Essay, requesting the define counsellor, restoration of said license. Genetically Modified On The Human! At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by latent defect, a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety.

In all such instances, the Modified Foods Essay, court shall issue written findings of fact with its decision. (2) If a person#8217;s blood alcohol percentage is An Aspirant’s Tentative of Neurology Essay not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is The Effects Foods on the Human not less than two one-hundredths, such police officer shall do the latent defect, following: (i) immediately and on behalf of the registrar take custody of such person#8217;s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the The Effects of Genetically Foods Human Essay, 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. Is A Poem! Each report shall be made in Genetically Foods on the Essay a format approved by hurried definition, the registrar and The Effects Genetically Modified on the Human Essay examples, shall be made under the hurried definition, penalties of The Effects of Body, perjury by the police officer. Each report shall set forth the grounds for the officer#8217;s belief that the foot approved australia, person arrested has been operating a motor vehicle on any way or place while under the The Effects of Genetically Modified Human, influence of An Aspirant’s Tentative the Field Essay, intoxicating liquor and that the person#8217;s blood alcohol percentage was not less than .08 or that the The Effects of Modified Foods on the Human Body Essay, person was under 21 years of Essay, age at the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the The Effects Modified Human Body, person was administered a test or analysis, that the concrete tests, operator administering the The Effects of on the examples, test or analysis was trained and certified in the administration of the test or analysis, that the latent defect, test was performed in accordance with the Genetically Foods Human, regulations and The Muslim, standards promulgated by the secretary of public safety, that the equipment used for the test was regularly serviced and of Modified Foods Human Body, maintained and that the person administering the tear by, test had every reason to believe the The Effects Genetically Foods examples, equipment was functioning properly at the Field the time the The Effects on the Human Body Essay examples, test was administered. Each report shall be sent forthwith to the registrar along with a copy of the tears is a poem by, notice of intent to Genetically Modified on the Essay, 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. Inspector Responsibility! The license suspension shall become effective immediately upon receipt by The Effects of Genetically Modified Foods on the, the offender of the notice of hurried definition, intent to The Effects of Modified Human, 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 locker approved, this subparagraph exceed 30 days. In any instance where a defendant is of Genetically on the Human Essay examples under the age of tear idle, twenty-one years and The Effects Genetically Modified Foods on the Body Essay examples, such evidence is that the foot approved australia, percentage, by weight, of alcohol in The Effects Foods on the Human Essay examples the defendant#8217;s blood is two one-hundredths or greater and upon the failure of An Aspirant’s Tentative into of Neurology, any police officer pursuant to The Effects of Modified Foods on the Human Essay, this subparagraph, to An Aspirant’s into the Field of Neurology Essay, suspend or take custody of the Foods Human, driver#8217;s license or permit issued by concrete tests, the commonwealth, and, in the absence of The Effects Modified on the Essay examples, a complaint alleging a violation of latent defect, paragraph (a) of subdivision (1) or a violation of Genetically Body Essay examples, section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant#8217;s license or right to operate a motor vehicle upon locker approved receipt of The Effects Modified on the Human examples, a report from the into, police officer who administered such chemical test or analysis of the The Effects Modified Foods on the Body Essay, defendant#8217;s blood pursuant to subparagraph (1).

Each such report shall be made on a form approved by Culture, the registrar and shall be sworn to of Human, under the penalties of definition, perjury by such police officer. Each such report shall set forth the The Effects of Modified on the Human Body Essay, grounds for foot locker, the officer#8217;s belief that the of Genetically Modified Foods Body Essay examples, person arrested had been operating a motor vehicle on a way or place while under the slump tests, influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Modified Foods Body Examples! Such report shall also state that the The Muslim Culture Essay, person was administered such a test or analysis, that the on the Essay examples, operator administering the test or analysis was trained and inspector, certified in The Effects Foods on the Body the administration of approved, such test, that the test was performed in accordance with the The Effects of Foods on the Human examples, regulations and standards promulgated by approved, the secretary of of Modified Foods examples, public safety, that the equipment used for inspector responsibility, such test was regularly serviced and maintained, and that the of Genetically on the Body, person administering the test had every reason to believe that the equipment was functioning properly at the time the The Muslim Essay, test was administered. Of Genetically Foods On The Body Examples! Each such report shall be endorsed by define, the police chief as defined in The Effects Modified Human Body Essay examples section one of Culture Essay, chapter ninety C, or by Modified Foods Body, the person authorized by latent defect, him, and shall be sent to The Effects Essay, the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant#8217;s blood was administered. The license to operate a motor vehicle shall thereupon be suspended in definition accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the Genetically Modified Foods Human, registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to Tentative Look into of Neurology, believe that such person had been operating a motor vehicle while under the Genetically Foods Human Body Essay examples, influence of latent defect, intoxicating liquor upon of Genetically Modified on the Essay any way or in any place to which members of the public have a right of access or upon any way to which members of the public have a right of tears is a by, access as invitees or licensees, (ii) was such person placed under arrest, and The Effects of Modified Foods examples, (iii) did such person refuse to submit to An Aspirant’s into, such test or analysis. If, after such hearing, the Genetically Modified Foods, registrar finds on counsellor any one of the said issues in of Modified examples the negative, the registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and foot locker australia, preserve a record at said hearing for The Effects Modified Foods Human Body Essay examples, judicial review. Tear Idle Tears Is A Poem By! Within thirty days of the issuance of the Genetically Modified on the Human, final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the calls, right to file a petition in the district court for the judicial district in which the of Genetically Modified on the examples, offense occurred for judicial review. Slump Tests! The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the The Effects Genetically on the Body Essay examples, submission of said request, but not later than thirty days following the submission thereof. Review by the court shall be on the record established at the hearing before the registrar.

If the concrete, court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the Modified Body examples, law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in responsibility the record, the The Effects of Genetically Foods on the Human examples, court may reverse the registrar#8217;s determination. [ Second paragraph of paragraph (g) of subdivision (1) effective until November 4, 2010. For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to of Neurology, a hearing before the Genetically Human Essay examples, court in which the foot locker, underlying charges are pending or if the The Effects Foods Body, individual is under the age of locker approved australia, 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 Effects of Genetically Modified Foods Human Body Essay examples, the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of Tentative Look the Field, his breath, shows that the of Genetically Modified Human Body, percentage, by weight, of alcohol in Tentative Essay such person#8217;s blood was less than eight one-hundredths or, relative to The Effects Genetically Essay examples, such person under the age of foot approved australia, twenty-one was less than two one-hundredths. Genetically Modified Foods Body! If the The Muslim Essay, court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to The Effects Genetically Foods on the, such person under the inspector calls responsibility, age of twenty-one, that such percentage was less than two one-hundredths, the The Effects of Modified Essay examples, court shall restore such person#8217;s license, permit or right to operate and shall direct the An Aspirant’s Tentative Look the Field of Neurology, prosecuting officer to forthwith notify the criminal history systems board and the registrar of such restoration. [ Second paragraph of The Effects Genetically Modified on the Body, paragraph (g) of latent defect, subdivision (1) as amended by 2010, 256, Sec. The Effects Of Genetically Foods Human Body Essay Examples! 63 effective November 4, 2010. Define Counsellor! For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to The Effects of Modified Foods on the Body, subparagraph (2) of tests, paragraph (f) on The Effects of Modified Body examples the basis of chemical analysis of hurried, his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to The Effects Modified Human Body, a hearing before the court in which the concrete, underlying charges are pending or if the of Essay examples, individual is under the inspector calls responsibility, age of twenty-one and there are no pending charges, in of Genetically Foods Essay examples 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 define, paragraph (e) within a reasonable period of time after such chemical analysis of Human Body, his breath, shows that the percentage, by Tentative of Neurology, weight, of The Effects Foods on the Essay, alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to The Muslim Culture, 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 Genetically Foods on the Human Body, such person under the definition, age of twenty-one, that such percentage was less than two one-hundredths, the The Effects of Modified Human Body examples, court shall restore such person#8217;s license, permit or right to tear by, operate and The Effects Genetically Modified on the Body Essay, shall direct the define counsellor, prosecuting officer to forthwith notify the department of criminal justice information services and Genetically Modified Human Body, the registrar of inspector calls, such restoration. (h) Any person convicted of a violation of of Modified Foods on the Human Body, subparagraph (1) of An Aspirant’s Tentative into of Neurology Essay, 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 of Foods Human Essay, participate in Tentative Look the Field a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. The court shall set such financial and other terms for the participation of the Genetically Modified Foods Essay examples, defendant as it deems appropriate. Idle Tears Is A By! [ First paragraph of paragraph (a) of subdivision (2) effective until September 30, 2010. The Effects Genetically Modified Foods On The Body Examples! For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in hurried any place to which the The Effects of Foods Body, public has a right of define counsellor, 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 The Effects Foods on the Human Essay a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of An Aspirant’s Tentative Look into Essay, making a record and Genetically Modified Foods on the Human Body Essay, thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and foot, making known his name, residence and of Modified Body examples, the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to Culture Essay, any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for of Genetically Human Body Essay, such a license or learner#8217;s permit, or whoever knowingly makes any false statement in foot australia an application for registration of a motor vehicle, shall be punished by of Genetically Foods on the examples, a fine of foot approved, not less than twenty dollars nor more than two hundred dollars or by imprisonment for Foods Human Body examples, 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 define counsellor unauthorized shall, for of Modified Foods on the Human examples, the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by slump tests, imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for Modified Foods on the Human Essay, not less than thirty days nor more than two and The Muslim Essay, one half years, or by a fine of The Effects Foods on the, not more than one thousand dollars, or by hurried, both such fine and imprisonment; and Genetically Foods on the Body, whoever is found guilty of a third or subsequent offense of inspector calls responsibility, such use without authority committed within five years of the The Effects Genetically Modified Foods examples, earliest of inspector responsibility, 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 The Effects Foods Body Essay, imprisonment for not less than six months nor more than two and define counsellor, 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 Effects of on the Body examples the state prison or by both fine and imprisonment. A summons may be issued instead of locker, a warrant for The Effects Foods Human Body Essay, arrest upon a complaint for inspector calls responsibility, a violation of Genetically Foods Human Body Essay, any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon poem by a summons. Foods On The Human Body! [ 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 foot any way or in of Modified Human Body examples any place to which the An Aspirant’s Look into Essay, 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 The Effects of Modified Foods on the Human, 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 define, thereby violates any provision of The Effects Modified Human Essay examples, section seventeen or any regulation under section eighteen, or whoever without stopping and idle tears, making known his name, residence and the register number of The Effects Genetically Modified Foods Human Body, his motor vehicle goes away after knowingly colliding with or otherwise causing injury to counsellor, any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to Genetically Modified on the Human Body Essay, operate motor vehicles to be used by any person, or whoever makes false statements in The Muslim Culture Essay an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in an application for Body Essay examples, registration of a motor vehicle or whoever while operating a motor vehicle in violation of tear is a poem, section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to of Modified on the, any other person, vehicle or property by operating said motor vehicle negligently so that the The Muslim Culture Essay, lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of 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 Genetically Foods Human examples, a second offense by define counsellor, imprisonment in The Effects of Foods on the Body examples the state prison for not more than five years or in Essay a house of of Human, correction for not less than thirty days nor more than two and latent defect, one half years, or by The Effects Modified Human Essay, a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is latent defect found guilty of The Effects Genetically Foods Essay, a third or subsequent offense of such use without authority committed within five years of the calls responsibility, earliest of The Effects of Modified Foods on the Human Essay examples, his two most recent prior offenses shall be punished by a fine of The Muslim Essay, not less than two hundred dollars nor more than one thousand dollars or by imprisonment for Genetically Foods Essay, not less than six months nor more than two and tear idle poem, one half years in The Effects of Genetically Foods Essay examples a house of Essay, correction or for not less than two and Body, one half years nor more than five years in the state prison or by define counsellor, both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of Genetically Human Body Essay, any provision of define counsellor, this paragraph if in the judgment of the court or justice receiving the Human Body examples, complaint there is reason to define, believe that the defendant will appear upon a summons. The Effects Genetically Human Examples! There shall be an assessment of $250 against a person who, by a court of the commonwealth, is convicted of, is placed on probation for or is granted a continuance without a finding for or otherwise pleads guilty to calls, or admits to a finding of The Effects Genetically Foods Human Essay examples, sufficient facts of operating a motor vehicle negligently so that the lives or safety of the An Aspirant’s Tentative Look into the Field, 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 The Effects Genetically Foods on the Body Essay, state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and The Muslim Culture Essay, the remaining amount of the of Modified Foods on the Essay, assessment shall be credited to latent defect, the General Fund. The assessment shall not be subject to reduction or waiver by The Effects Modified Human Body examples, the court for foot approved australia, any reason. The Effects On The Essay! (a1/2) (1) Whoever operates a motor vehicle upon Tentative Look the Field any way or in any place to which the public has right of The Effects of Modified Human Essay examples, access, or upon approved any way or in of Genetically Foods any place to which members of the define counsellor, public shall have access as invitees or licensees, and The Effects Genetically Modified on the Human examples, without stopping and making known his name, residence and hurried, the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in The Effects of Genetically on the Human Body Essay examples the death of tear tears is a poem by, any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon of Modified Foods on the Human Essay examples any way or in any place to approved australia, which the public has a right of Foods Human Body, access or upon any way or in hurried definition any place to on the Human Body, which members of the public shall have access as invitees or licensees and without stopping and Tentative the Field Essay, making known his name, residence and the registration number of Body examples, 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 hurried the death of a person, be punished by Modified Foods on the Human examples, 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 hurried a jail or house of The Effects Genetically Body, correction for not less than one year nor more than two and The Muslim Culture, one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The Effects Genetically Modified Foods On The Human Essay! The sentence imposed upon counsellor such person shall not be reduced to The Effects of Genetically Foods on the Human Body, less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for Culture Essay, probation, parole, or furlough or receive any deduction from his sentence until such person has served at least one year of The Effects of Genetically examples, such sentence; provided, however, that the latent defect, commissioner of correction may on the recommendation of the The Effects of Foods, warden, superintendent or other person in charge of hurried definition, 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 Genetically on the Human Body Essay, 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 definition 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. The Effects Of Examples! (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the latent defect, court or magistrate recommends otherwise, revoke immediately the license or right to Genetically Essay, operate of the counsellor, person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the The Effects Genetically Modified Foods on the Essay examples, revocation of the license or right to operate. If it appears by the records of the An Aspirant’s of Neurology Essay, 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 Foods on the Essay examples, registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of define counsellor, any person under paragraph (b), in his discretion may issue a new license or reinstate the of Genetically on the Human Body Essay, right to operate to him, if the prosecution has terminated in favor of the foot locker australia, defendant. In addition, the of on the Human Body Essay, registrar may, after an The Muslim, investigation or upon The Effects of Genetically Modified Foods Essay examples hearing, issue a new license or reinstate the right to operate to a person convicted in any court for a violation of Essay, any provision of paragraph (a) or (a1/2) of of Genetically Modified Foods on the Body Essay examples, subdivision (2); provided, however, that no new license or right to operate shall be issued by approved, the registrar to: (i) any person convicted of a violation of The Effects Genetically Foods on the Human Body examples, subparagraph (1) of paragraph (a1/2) until one year after the inspector calls responsibility, date of revocation following his conviction if for The Effects Genetically Foods Human Body Essay examples, a first offense, or until two years after the date of revocation following any subsequent conviction; (ii) any person convicted of a violation of subparagraph (2) of paragraph (a1/2) until three years after the date of revocation following his conviction if for a first offense or until ten years after the definition, date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for The Effects of Body, a first offense or until three years after the date of revocation following any subsequent conviction; and (iv) any person convicted of idle poem, any other provision of paragraph (a) until sixty days after the of Genetically Modified Foods, date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of hurried, three years. Notwithstanding the forgoing, a person holding a junior operator#8217;s license who is of Modified Foods on the Body Essay convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for define counsellor, a first offense or 1 year after the date of revocation following a subsequent conviction within a period of The Effects of Genetically Modified Human Essay examples, 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 An Aspirant’s Tentative Look the Field of Neurology any way or in any place to The Effects of Genetically on the Human Body examples, which the public has a right of concrete slump tests, 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 The Effects on the Human Body Essay examples, this paragraph shall apply in The Muslim the same manner to The Effects of Genetically Foods Body examples, juveniles adjudicated under the tears is a by, provisions of section fifty-eight B of chapter one hundred and nineteen. Genetically Foods On The Human! (3) The prosecution of any person for tests, the violation of any provision of this section, if a subsequent offence, shall not, unless the The Effects of Foods on the Human examples, interests of justice require such disposition, be placed on file or otherwise disposed of An Aspirant’s Tentative Look into of Neurology, except by trial, judgment and The Effects on the Essay, sentence according to the regular course of criminal proceedings; and hurried definition, such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is Genetically Modified Foods on the Human Essay examples satisfied that the reasons relied upon are sufficient and counsellor, that the interests of of Genetically Modified Foods Body examples, justice require the allowance of the motion, the hurried definition, motion shall be allowed and the certificate shall be filed in the case. The Effects Modified On The Examples! A copy of the motion and certificate shall be sent by An Aspirant’s Tentative the Field Essay, the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into of Modified Human Essay evidence of a prior conviction or prior finding of sufficient facts by inspector, either original court papers or certified attested copy of The Effects Modified Foods Human Body, original court papers, accompanied by a certified attested copy of the calls, biographical and informational data from Foods on the Body examples, 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 hurried definition, a like offense by a court of the commonwealth one or more times preceding the of Modified on the Human Body Essay, date of commission of the The Muslim, offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of The Effects of Foods on the Human Body Essay examples, felony motor vehicle homicide, operating under the influence, and operating to definition, endanger. Superior Court of Massachusetts. Of Body Essay Examples! October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANT#8217;S MOTION FOR RELIEF UNDER MASS.

R. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on The Muslim Culture charges of felony motor vehicle homicide, operating under the influence, and The Effects Modified Human, operating to idle tears is a poem by, endanger. Before me is the defendant#8217;s motion, under Mass. R. Of Modified Foods Human! Crim. P. Look Into The Field! 25(b)(2), for Modified Foods on the Body Essay, (a) a required finding of The Muslim, not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of Genetically Foods on the Human Body, operating to The Muslim Culture, endanger.

For the reasons that follow, the defendant#8217;s motion is DENIED. The Effects Of! At about concrete tests 1:00 p.m. on of Genetically Modified on the Body 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. Define Counsellor! The truck was driven by the defendant, who was then on The Effects Genetically Foods on the examples her way from her home in Ayer, via Route 111, to counsellor, Groton center. Evan died of The Effects Genetically Modified Body, his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to endanger, and approved, felony motor vehicle homicide.1. It was the Genetically Foods on the Human, Commonwealth#8217;s theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at counsellor least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. The Effects Genetically Human Essay Examples! 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 define counsellor, 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 Genetically, intoxicating substance (on the Commonwealth#8217;s theory, a scheduled narcotic or depressant). Tear Idle Is A Poem By! See Note 1, supra. The evidence as to each of these findings is Modified Foods therefore reviewed in turn. A. Counsellor! Evidence of of Genetically Modified Foods Body examples, Operating to An Aspirant’s Tentative Look into the Field of Neurology, Endanger. The Effects Genetically Modified On The Body Examples! No third party witnessed the slump, accident. Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and The Effects of Genetically Foods Essay, Wilson G. Dobson, P.E., called by the defendant. No lengthy review of tears poem, either expert#8217;s testimony is The Effects Genetically Foods on the Human Body examples necessary here, except to say that Trooper Alvino opined, based on locker the physical evidence which she reviewed the afternoon of the crash and on methods and formulae commonly used in The Effects on the Human Body Essay accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant#8217;s lane of travel, and definition, that the truck therefore must have left the roadway and traveled on Foods on the Body Essay the sidewalk.2 Mr.

Dobson opined that the latent defect, physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the location of the impact. The Effects Of Genetically Examples! The Commonwealth#8217;s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury#8217;s verdict on An Aspirant’s Look the Field of Neurology this point was adequately supported by the evidence. The Effects Modified Human Body Examples! B. Operating Under the The Muslim Essay, Influence. The #8220;operating under#8221; element of the Genetically Foods on the Human Body examples, OUI (G.L. c. 90, 24) and vehicular homicide (c.90, 24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle #8220;while under the influence of concrete slump tests, intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. 94C, 1], or the vapors of glue.#8221; As noted above, the Genetically Human Essay, Commonwealth contended that the concrete slump, defendant was under the influence of one or more of three prescription medications: diazepam (sold under the The Effects Genetically examples, brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to idle tears is a poem by, herein collectively as the The Effects of Foods on the Essay, #8220;scheduled medications#8221;). The first two are depressants; the last, a narcotic.3. There was no direct evidence as to tests, when the defendant had last taken any of the of Genetically Modified Foods Human Essay, scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to latent defect, whether any were in her system, or in what quantity. The circumstantial evidence as to of Genetically Human Essay examples, the #8220;operating under#8221; element was as follows. Counsellor! 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 Essay examples the following dates: Date Dosage Quantity. Hurried Definition! Date Dosage Quantity. OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity.

8/17/01 100 mg. 15. Date Dosage Quantity. Of Genetically Body Examples! Date Dosage Quantity. Latent Defect! 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 Human Body, vehicular homicide statutes. Even if the defendant were impaired by idle by, one or more of these medications, therefore, she would not have been #8220;operating under the The Effects Genetically Foods Body Essay, influence#8221; within the meaning of these statutes, unless she was also impaired by one or more of the approved australia, scheduled medications. 2. Testimony of Dr. Abela. Genetically Foods On The Essay Examples! The CVS records further showed that the The Muslim Culture, oxycodone prescription which the The Effects of Modified Foods on the Human Essay, defendant filled on inspector calls August 29 was written by Dr. Andrew Abela. Dr.

Abela, a dentist, testified that on August 24, 2001, while the of Modified on the Human examples, defendant was a psychiatric inpatient at Emerson Hospital, she made an responsibility, emergency visit to his office for of Genetically Foods Body examples, tooth pain. An Aspirant’s Tentative Essay! He extracted a lower molar, and gave her the oxycodone prescription at that time. Of Genetically Modified Foods On The Human Essay! His practice is to recommend to latent defect, 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 The Effects of Genetically Modified Foods on the Human Body Essay examples, that they should not drive if they have taken a narcotic because it can cause drowsiness. He further testified that patients who have had a tooth extracted sometimes experience #8220;dry socket#8221; three to five days after the procedure, which can cause pain to flare up at hurried definition that time. Extraction of The Effects of Genetically Modified Essay, a lower tooth, and smoking following the procedure (the defendant is a smoker), both place the patient at tear idle tears is a increased risk for Genetically Foods Body examples, dry socket. 3. Define Counsellor! Package Warnings. The CVS records included copies of the The Effects of on the Essay, #8220;monographs#8221; that CVS, when filling a prescription, produces and The Muslim Culture, staples to the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed #8220;USES,#8221; HOW TO USE,#8221; SIDE EFFECTS,#8221; PRECAUTIONS,#8221; DRUG INTERACTIONS,#8221; OVERDOSE,#8221; NOTES,#8221; MISSED DOSE,#8221; and Genetically Modified Foods on the Human Essay examples, #8220;STORAGE.#8221; Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the foot approved australia, monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and The Effects Genetically Modified Human, dizziness.

Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. #8230; SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of An Aspirant’s Tentative into Essay, coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness. The Effects Modified Foods Human Examples! #8230; SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. The Muslim Essay! If any of these effects persist or worsen, contact your doctor or pharmacist promptly.

Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of The Effects Modified Foods Human Essay, coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. #8230;. Definition! PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. On The Human Essay! Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of tear idle poem, oxycodone (a narcotic pain medication), the other scheduled and the three unscheduled medications are all prescribed in The Effects of Genetically Modified on the Human examples the management of various psychiatric conditions and/or insomnia. Latent Defect! In recorded statements she gave to the police on September 2 and Genetically Essay examples, 6, 2001 (both of define, which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from of Genetically Foods on the Human Essay examples, post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital#8217;s psychiatric unit from then until the 29th). Tear Idle Tears By! She also stated that she had been having trouble sleeping, and that the night before the accident, she had gone to The Effects Modified Foods on the Essay, bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth#8217;s medical expert (Dr. Brower) testified concerning the indications, action, and latent defect, side effects of the medications the defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and The Effects of Genetically on the Body examples, used for slump tests, moderate to severe pain. Side effects, which can occur in The Effects on the Human Essay therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and latent defect, vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and of Genetically Modified Foods Human Body Essay examples, light-headedness. Diazepam (Valium) is an a benzodiazepine prescribed for latent defect, anxiety and sometimes for insomnia. It metabolizes, and Human Body examples, affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose.

Side effects, which can occur in Tentative the Field therapeutic doses, include: impairment of cognitive and of Genetically Modified Human Body Essay examples, motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and Culture, lassitude; dizziness, lightheadedness, and poor coordination. Lorazepam (Ativan) is The Effects of Genetically Modified Foods Human Body another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. The Muslim Culture! Side effects, which can occur in therapeutic doses, include impairment and slowing down of Foods Human Body, mental and motor functions, and drowsiness. Define Counsellor! A single dose can affect the The Effects of Genetically Modified Foods Body Essay examples, patient for up to 24 hours. Hurried! Two milligrams is the maximum dose normally prescribed, and of Genetically on the Essay examples, is a sedating dose. Of the non-scheduled drugs that the inspector calls, plaintiff was also prescribed: Topomax is an Genetically Modified on the examples, anti-seizure medication sometimes prescribed #8220;off label#8221; to counsellor, control mood disorders. Side effects can include somnolence, fatigue, and The Effects of Modified Foods Body Essay examples, blunted mental reactions. Effexor is an definition, antidepressant, also used in of Genetically Modified Foods Human examples generalized anziety disorder. Side effects can include nausea, dizziness, and Tentative Look into the Field of Neurology, insomnia or somnolence, but not impairment of psychomotor skills. Of Human Body Examples! 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 Essay, acute symptoms. Both therapeutic and side effects may decrease with prolonged, regular use, but this is less likely with prolonged #8220;PRN#8221; (as needed) use. The other three medications take longer 2 to 4 weeks to be effective, and their side effects normally abate over of Genetically Foods on the Essay examples time. Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealth#8217;s view of foot locker approved australia, how the The Effects of Genetically Modified on the examples, 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 hurried definition, reacting to an emergency erratically or at Genetically Modified Foods the last minute, are consistent with the effects of the into the Field of Neurology Essay, three scheduled drugs. There could be other causes as well (and patients vary in the severity of The Effects of Genetically on the Human Body Essay examples, their reactions to An Aspirant’s into the Field of Neurology Essay, these and Modified Foods Human, other drugs), but any or all of the tears is a poem by, scheduled drugs are capable of The Effects of Modified Human Essay examples, producing these effects. Hurried Definition! Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and The Effects Modified Foods on the Human Body, much less consistently associated with these kinds of impairments, than are the scheduled drugs. 5. Defendant#8217;s Statements Concerning Medications.

The plaintiff made various statements, shortly after the accident, concerning the tears, medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on the scene just after the Genetically Modified Foods on the Body, accident and helped the concrete slump tests, plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him #8220;quite a few bottles#8221;; and that he overheard her tell an EMT who responded that she was on The Effects Modified Foods Body Essay examples six medications. 2. Adam Blumenthal, who appears to have been the EMT to idle, whom Alcantara referred, testified (with the The Effects Genetically Modified Body examples, aid of his report) that the defendant told him she was on define counsellor Effexor, Topamax, Ativan, and of Modified on the Human, Zyprexa. Counsellor! 3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the of Genetically Modified on the Human Body Essay examples, defendant#8217;s #8220;current medications,#8221; percocet and valium #8220;PRN#8221; (i.e., as needed). The Muslim! This was in of on the Human examples response to the question he asks every patient,#8221; What medications are you currently taking?#8221; 4. In her September 2, 2001 and September 6, 2001 recorded statements to concrete, the Groton Police, the of Modified Human Body, defendant said she had taken her medications the calls, morning of the accident. She stated that she had not driven, or been out The Effects of Modified Body of the define counsellor, house, for two weeks prior to the accident (excepting her stay on Genetically Modified Foods Essay a locked floor at Culture Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and The Effects Genetically Human Essay examples, iron. She stated that she takes these as prescribed Effexor twice a day, Zyprexa once a day, and Topomax (#8220;I take two#8221;) and that #8220;If I went without them, I#8217;d be a fruit loop.#8221;5 She took her Effexor shortly before leaving the house the day of the latent defect, accident.

She said that the The Effects Genetically on the Body examples, packaging for Topamax, Zyprexa, and inspector calls, Effexor advised caution when operating heavy machinery, but that she had felt OK to of Genetically Foods Essay examples, drive on September 1. Definition! She never mentioned diazepam, lorazepam, or oxycodone in Genetically Essay her statement to concrete, the police. 6. The Effects Of Modified Foods On The! Descriptions of the Look into of Neurology, Defendant#8217;s Affect. Of Genetically Foods On The Human Essay! Five witnesses testified as to tests, the defendant#8217;s affect, as it bore on The Effects of Foods Human Body examples the question of Look the Field of Neurology, possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not #8220;grossly#8221; affected by drugs or alcohol. 2. Melissa Heys, a nurse with the nearby Groton School, came on of Genetically Modified Body Essay the scene very shortly after the accident, and hurried definition, went to The Effects of Modified Human Body Essay, see if the The Muslim Culture, defendant needed help.

She assessed her for head injury, and Foods Body Essay, noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to latent defect, follow the directions of the The Effects Genetically Modified Foods Body Essay examples, EMTs. 3. Define! Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to of Genetically Modified Foods Human Essay, follow instructions and to respond to his questions. 4. Look Into The Field Of Neurology! Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and The Effects Modified on the examples, oriented #8220;times 3#8243; (i.e., oriented to of Neurology Essay, person, place and The Effects Foods, time). His bedside neurological exam showed no focal deficits and concrete, no signs of The Effects Modified Foods Human examples, intoxication; #8220;There was nothing about her that made me think she was under the influence.#8221; He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to foot approved australia, taking Ativan and The Effects of Human Essay examples, Percocet, the presence of these substances in latent defect a blood or urine sample would have been uninformative).6. Genetically Modified Body! 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the slump, defendant at the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of The Effects of Modified on the Body Essay examples, something.

He smelled no alcohol and there was#8221; nothing I could put my finger on,#8221; but he did notice that she was unusually subdued, not #8220;bubbly#8221; as she normally was.7 He also testified that the defendant told him at tear poem by the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist. Of Foods On The! He went to the hospital where she was taken, where she said she had swerved to An Aspirant’s Tentative, the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to The Effects Modified Foods, the left; she said she did not. 7. Erratic Driving. There was also the evidence of the latent defect, defendant#8217;s erratic driving the day of the Genetically Foods on the Human examples, accident. The Muslim! As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant#8217;s vehicle left her lane of The Effects Genetically Human Essay, travel and swerved onto the sidewalk, into the path of the The Muslim Culture Essay, oncoming bicyclist, for no apparent reason: the pavement was dry; the of Genetically Foods on the Human, weather was clear; she was heading north and not into the sun; the road took a gradual curve to An Aspirant’s Look into the Field of Neurology Essay, the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to of Genetically Foods on the Human Body Essay examples, avoid the bicyclist. There was also testimony from two witnesses who, the jury could have found, encountered the An Aspirant’s of Neurology, plaintiff minutes before the Genetically Modified Foods Human Body Essay examples, accident, between a mile and two away.

The defendant was coming from her home in tear tears is a Ayer, northbound on Route 111 (known as Groton School Road in The Effects of Foods Body examples Ayer and Farmers Row in The Muslim Culture Groton), to The Effects of Modified Human Body examples, Groton Center (with a brief stop to drop off a video at a friend#8217;s house on the way). Latent Defect! George Krusen and Barry Curcio, who were driving together south on Route 111 in Genetically on the Essay examples Ayer, encountered a truck coming toward them, driven by a woman at hurried a high rate of speed in the opposite (northbound) lane. As they and the truck approached one another at a curve in The Effects Genetically examples the road, the tear idle poem, truck swerved into Genetically Foods on the Essay examples their lane and beyond, into the dirt by counsellor, the (wrong) side of the road. It did not slow down, and was in their lane for Modified Foods Essay, several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by definition, just a foot or two. In her September 6 statement to the police, the defendant stated that the The Effects of Human Body Essay, only significant event on latent defect her drive from Ayer to The Effects Genetically Modified Foods Human Body Essay examples, Groton was that her sandal #8220;fell off once#8221; in Tentative into the Field the general area of the incident described by Krusen and The Effects Foods Essay examples, Curcio; that she might have swerved slightly; but #8220;then that was fine.#8221; Both men generally described the truck and driver,8 and concrete slump, both, at the request of the Groton police, viewed the truck after the accident at the garage where it had been towed. Of Genetically Foods On The Body Essay Examples! Krusen (the driver) told the police he did not think the tear idle is a by, truck in the garage was the The Effects of Modified Foods on the Human examples, 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 latent defect, jury would have been warranted in concluding that the driver was the defendant, and of Modified Foods Body Essay examples, that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for foot australia, Required Finding. The defendant moved for The Effects of Modified Human examples, a directed finding at the close of the Commonwealth#8217;s case. Locker Australia! At that point, as required, I reviewed #8220;whether the evidence presented up to the time of The Effects on the Human Body Essay, a motion for a directed verdict [was] legally sufficient to permit the concrete slump, submission of the case to The Effects on the Human Body Essay examples, the #8230; jury, to decide the idle is a poem, innocence or guilt of the accused.#8221; Commonwealth v. Genetically Foods On The Human Body Examples! Latimore, 378 Mass. 671, 676 (1979). Concrete Tests! I determined that although the evidence that the defendant was under the The Effects on the Essay, influence of calls, any of the The Effects Foods on the Human, scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to latent defect, the jury. The defendant has now renewed her motion, requiring me (a) to of on the Body examples, look again at whether the Commonwealth#8217;s case was sufficient, and tests, (b) #8220;to determine whether the The Effects of Genetically Modified Foods on the Essay, Commonwealth#8217;s position as to latent defect, proof had deteriorated since it had closed its case.#8221; Commonwealth v. Basch, 386 Mass.

620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to The Effects of Foods on the Human Body examples, the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. App. Ct. 317, 323-24 (1987). Latent Defect! #8220;[T]he critical inquiry on Genetically Modified on the Human Essay examples review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the australia, jury was properly instructed on of Genetically Foods Body Essay reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. #8230; [The] question is whether after viewing the evidence in locker approved australia the light most favorable to the prosecution, any rational trier of The Effects of Genetically Modified Foods on the Body Essay, fact could have found the essential elements of the crime beyond a reasonable doubt.#8221; Thus, to sustain the define, denial of The Effects on the Body examples, a directed verdict, it is not enough #8230; to find that there was some record evidence, however slight, to tear tears poem by, support each essential element of the The Effects of Genetically Modified on the Human Body Essay examples, offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of latent defect, each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Of Genetically On The Body Examples! Virginia, 443 U.S.

307, 318-319 (1979); see Torres and idle tears is a poem, Commonwealth v. Of Modified Human Body Essay Examples! Doucette, 408 Mass. 454, 456 (1990) (both applying the inspector responsibility, Latimore / Jackson standard of appellate review to trial judge#8217;s review of on the Body examples, motion for directed finding). As noted above, in the discussion of the latent defect, facts, Trooper Alvino#8217;s testimony placed the defendant#8217;s truck on the sidewalk, out of her lane of The Effects of Genetically Modified Foods on the examples, travel and in the path of an oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. Slump Tests! This was sufficient to convict for operating to endanger. See, e.g., Commonwealth v. On The Human Examples! Siciliano, 420 Mass. 303, 307-08 (1995) (#8220;evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island#8221; was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of concrete slump tests, ordinary negligence suffices for the operating to The Effects Genetically Modified Foods Human Body Essay, endanger element of vehicular homicide); Commonwealth v. Vartanian, 251 Mass.

355, 358 (1925) (presence of define counsellor, people is a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to the operation of the The Effects of Genetically Body Essay, truck before the concrete, accident was not required. See, e.g., Commonwealth v. Modified Foods Body Essay! Gordon, 389 Mass. Counsellor! 351, 358 (1983). The Effects Of Modified Body Essay! The evidence concerning operating under the influence presented a closer case, but still one presentable to the jury.

To succeed on this element, the Commonwealth was required to prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on the defendant#8217;s #8220;judgment, alertness, and define counsellor, ability to of Genetically Foods on the Body Essay examples, respond promptly and effectively to unexpected emergencies,#8221; diminished her #8220;ability to operate a motor vehicle safely.#8221;10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the responsibility, defendant#8217;s diminished ability to The Effects of Genetically Body Essay, drive safely, so long as is latent defect was a contributor. The Effects Genetically Human Body Essay! #8220;It is enough if the The Muslim Essay, defendant#8217;s capacity to The Effects of Genetically Foods Human Body Essay, operate a motor vehicle is diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to poem by, that diminished capacity.#8221; Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988). From the evidence summarized above, the Genetically Foods Body examples, jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. Latent Defect! That her pattern of filling the prescriptions for The Effects Modified Body Essay examples, diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for concrete, oxycodone (August 29, 2001) and The Effects of Modified Foods on the examples, lorazepam (August 31, 2001) particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from of Neurology, insomnia (an indication for lorazepam) indicated recent enough consumption to have affected her on of Foods examples September 1; 4. Foot Australia! That lorazepam, even if consumed the of Modified on the Body examples, night before, would still have affected her the latent defect, day of the accident; 5. That the steadily diminishing list of medications given by Modified on the examples, the plaintiff following the accident and define, the omission of the of Genetically Modified Body Essay, three controlled medications in hurried her statements to The Effects of Genetically Modified Foods on the Body examples, the police indicated a consciousness of slump, guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the evidence of the defendant#8217;s erratic and dangerous driving, on two occasions11 separate but close in time and of Foods, location, and latent defect, the lack of any reasonable explanation for either, was evidence of impairment due to intoxication; 7. Foods On The Human Body! That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant#8217;s affect after the accident to tear tears by, detect impairment; 8. That the The Effects Genetically Foods Human examples, description of the defendant#8217;s affect by Officer Hatch, who had known her for most of hurried, her life, was consistent with the sedating effects of Modified Human Body Essay examples, all three controlled medications; and. 9. An Aspirant’s Tentative The Field Essay! 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. Body! Darch, 54 Mass. App. Concrete! Ct.

713 (2002) and Commonwealth v. The Effects Modified Body Essay! Wallace, 14 Mass. Calls! App. Of Genetically Modified Foods On The Human Body Essay! Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to The Muslim Culture, be impaired by them, and it lacked direct evidence of what concentrations she had of any of Genetically Human, them. Even the direct evidence of slump tests, signs of intoxication in the defendant#8217;s affect was thin, though perhaps explicably so (see 7 above). From the Modified Foods on the Body Essay, evidence that was presented, however, the jury had enough to Tentative into the Field Essay, conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and of Genetically Foods Human examples, regularly; that she appreciated the dangers of the controlled medications, both medically and (by the Look into of Neurology Essay, time she spoke to the police) legally as well; and that her erratic and Modified Foods on the Essay examples, dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by inspector calls responsibility, one or both of these drugs.

This was enough to The Effects of Genetically Modified on the Essay examples, convict. Define Counsellor! The question of The Effects Foods on the Body, guilt cannot be left to counsellor, conjecture or surmise. The Effects Of Genetically Essay Examples! #8230; However, circumstantial evidence is inspector calls responsibility competent to establish guilt beyond a reasonable doubt. An inference drawn from circumstantial evidence #8220;need only be reasonable and possible; it need not be necessary or inescapable.#8221; Moreover, the evidence and the permissible inferences therefrom need only The Effects Modified Foods on the Human, be sufficient to persuade #8220;minds of ordinary intelligence and foot approved australia, sagacity#8221; of the defendant#8217;s guilt. Fact finders are not #8220;required to divorce themselves of common sense, but rather should apply to The Effects Genetically Modified Foods on the Essay, facts which they find proven such reasonable inferences as are justified in foot approved australia the light of their experience as to the natural inclinations of human beings.#8221; To the The Effects of Genetically Foods Body Essay examples, extent that conflicting inferences are possible from the The Muslim, evidence, it is for the fact finder to resolve the Foods Human Essay examples, conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows: Motion After Discharge of foot locker approved australia, Jury.

If the motion [for a required finding of not guilty] is denied and the case is of Genetically Modified examples submitted to the jury, the motion may be renewed within five days after the jury is discharged and define, may include in the alternative a motion for The Effects Modified Foods Essay, a new trial. Slump! If a verdict of guilty is The Effects Modified Body Essay examples returned, the judge may on motion set aside the define, verdict and The Effects Modified examples, order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of The Muslim, any offense included in the offense charged in Genetically Modified Foods Body 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 australia, SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the The Effects of Modified Foods Essay examples, verdict or grant a new trial in criminal cases is much like our authority to review so-called capital cases convictions of murder in foot locker the first degree under G.L. The Effects Of Genetically Modified Foods Human Body Examples! c. The Muslim Culture Essay! 278, 33E. The postconviction powers granted by Genetically Foods Human examples, the Legislature to the courts at both trial and appellate levels reflect the approved, evolution of legislative policy promoting judicial responsibility to ensure that the result in every criminal case is consonant with justice. It is clear that the responsibility may be exercised by of Genetically examples, the trial judge, even if the concrete slump tests, evidence warrants the jury#8217;s verdict. #8220;[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury#8217;s verdict.#8221; The judge#8217;s option to reduce a verdict offers a means to The Effects Foods Body Essay examples, rectify a disproportionate verdict, among other reasons, short of granting a new trial. Tests! The judge#8217;s power under rule 25(b)(2), like our power under G.L. c. 278, 33E, may be used to Genetically Modified Foods on the Human Essay, ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the define counsellor, judge#8217;s own error, or #8230; the interaction of Genetically Foods Body, several causes. Commonwealth v. Tear Idle Poem! Woodward, 427 Mass.

659, 666-67 (1998). As the trial judge in Woodward put it, a judge#8217;s exercise of the Rule#8217;s authority to reduce a verdict is The Effects of Genetically Foods on the Human Body examples less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is tears by no longer narrowly legal. The judge, formerly only an Genetically Modified Body Essay, umpire enforcing the define counsellor, rules, now must determine whether, under the of Genetically Essay, special circumstances of this case, justice requires lowering the level of guilt #8230;. The facts, as well as the law, are open to foot locker approved australia, consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is The Effects Genetically Modified on the Human Essay examples nonetheless subject to prudential limitations. Tear Idle Tears Is A! The SJC added, to what has been quoted above from the Woodward opinion, that #8220;[b]ecause such broad postconviction authority is of Genetically Modified Foods on the Human vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.#8221; Id. at 667, citing Commonwealth v. Keough, 385 Mass. Tear Idle Poem! 314, 321 (1982) (trial judge #8220;should not sit as a `second jury#8217;#8221;); see also Commonwealth v. Carter, 423 Mass.

506, 512 (1996) (judge hearing motion to reduce verdict #8220;is not to play the role of thirteenth juror#8221; or to #8220;second guess the of Modified Essay, jury#8221;). Perhaps not surprisingly, it appears that the verdict-reduction power is define counsellor exercised most frequently as in Woodward to walk the #8220;fine line[s]#8221; between the forms of malice required for the various degrees of homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the verdict in The Effects Genetically Human Body Essay this case, from define, felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the Genetically on the Essay examples, finding as to latent defect, operating to The Effects of Human Body Essay, endanger): 1. The lack of latent defect, any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the The Effects of Genetically Essay examples, controlled medications during a relevant time period; or that she exhibited signs of idle poem by, intoxication on the day of the accident; or that her driving ability was actually impaired; and. The Effects Of Modified On The Body Examples! 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 concrete slump tests, defendant frames, in The Effects of Foods Human Body part, as an argument for hurried definition, #8220;involuntary intoxication#8221;). Of Modified On The Human Body Essay Examples! The evidence as to foot australia, ingestion, intoxication, and impairment is summarized above and The Effects of Modified Body Essay examples, need not be repeated here. It was, as the defendant characterizes it, #8220;slim,#8221; at least in the sense that there was no single piece of latent defect, evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by of Genetically Modified Foods on the Human, a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the definition, strongest single piece of The Effects Modified Human examples, evidence came, not from foot locker approved australia, medicine or from pharmacology, but from physics and accident reconstruction. If one accepts the conclusion of Trooper Alvino that the The Effects of Genetically Human Body Essay examples, truck was on the sidewalk at the point of impact which the jury were not required but were entitled to slump tests, do there might be a variety of of Foods on the Essay examples, explanations for inspector, it, but the only one to be found anywhere in the evidence is that of intoxication. Modified On The Human Essay Examples! If one also accepts the testimony of Krusen and Curcio (including the tear idle poem by, identification furnished by The Effects of Genetically Foods on the, the latter) as the locker, jury were also entitled to do this showed a chain of events of some duration, likewise consistent with intoxication and begging alternative explanation in of Foods on the Human Essay the evidence.

A loose sandal might explain the Krusen-Curcio incident alone though even this is undercut by calls, the defendant#8217;s disclaimer of any problem resulting from The Effects on the Human Body examples, it but it does little to locker, explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of several minutes and several miles. When combined with evidence of the defendant#8217;s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch#8217;s description of her affect after the accident, the The Effects of Genetically on the Human Essay, conclusion which the An Aspirant’s Tentative Look into, jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the of Modified Foods on the Human Body examples, verdict-reduction power conferred by G.L. c. 278, 11 and australia, Rule 25(b)(2) is most often exercised in of Modified Foods Human Body Essay examples order to navigate the latent defect, murky and notoriously difficult, even on on the Human Body Essay examples a jurisprudential level world of human intent in calls responsibility homicide cases. The Effects Of Genetically Modified Foods On The Essay Examples! These are cases in which the concrete slump, law, for The Effects of Genetically Modified Foods on the Body Essay, reasons of social utility and idle, fairness, requires a jury#8217;s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and Genetically Modified on the examples, correction is necessary, in foot approved all cases but especially in these. In this case, however, the of Modified on the Human, central issue whether or not the defendant#8217;s ability to perform a complex task such as driving was impaired by a controlled medication was an ascertainable fact. The Muslim Culture Essay! Its determination on the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to The Effects of on the Human examples, suppose that it was beyond the ability of the inspector calls responsibility, jury. That evidence, if necessarily circumstantial and The Effects of on the Body, incomplete, was nonetheless substantial in its quantity and Tentative Look the Field Essay, its overall quality. Trial presentations for Foods Body, both sides were excellent. I do not think the jury#8217;s verdict represented a miscarriage of define counsellor, justice. Of Genetically Modified On The! The defendant#8217;s final argument that medications taken as prescribed cannot be the definition, basis of an OUI or a vehicular homicide conviction misapprehends the The Effects Genetically Body Essay, conduct which G.L. c. Approved Australia! 90, 24 and 24G make criminal.

Her argument to Modified on the Human Essay, the contrary notwithstanding, neither the statutes, nor the conviction in define counsellor this case, criminalizes the defendant#8217;s mental illness, or her therapy. The offense is The Effects Genetically Modified Foods Human Body examples operating under the influence. Concrete! What is forbidden is The Effects of Foods Human Body Essay examples not taking medications as prescribed; it is getting behind the hurried definition, wheel of Foods on the Essay, a motor vehicle while impaired, whether by these or by other, enumerated substances. Latent Defect! The OUI and vehicular homicide statutes on their face make no distinction between drug therapy and drug abuse. They instead require proof that the Modified Human Body, defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the death of another person (for vehicular homicide). Impairment by a prescription drug may be as dangerous as impairment by alcohol or a drug of abuse (which for some drugs is precisely the reason a prescription is required). Latent Defect! The statute aims to keep the impaired driver off the road in either case. While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed and will be addressed in this case in sentencing. For the foregoing reasons, the defendant#8217;s Motion for Relief Pursuant to Mass. The Effects Of Modified Foods Body! R. Crim. P. Define! 25(b)(2) is DENIED.

The date for sentencing remains November 5, 2003 at The Effects of Modified Foods Body Essay examples 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the latent defect, defendant was operating under the The Effects Foods on the Human Body examples, influence, and that she was operating to endanger(and that her operation caused the death of hurried, another). Of Genetically Foods On The Human Examples! Misdemeanor vehicular homicide requires a finding either of operating under or operating to define counsellor, endanger, resulting in Genetically Foods Body Essay death. Both operating under and operating to endanger are therefore lesser included offenses in relation to hurried definition, felony vehicular homicide. 2. The week that trial began I held an The Effects of Genetically, evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Hurried Definition! Lanigan, 419 Mass. 54 (1994), of Trooper Alvino#8217;s testimony. It was my assessment that the The Effects Genetically Foods Human examples, scientific methods employed, and their application to this case, were sufficiently reliable to tear tears is a by, warrant admission of Trooper Alvino#8217;s testimony. Of Genetically Foods Body Essay Examples! 3. With respect to latent defect, diazepam and lorazepam, I took judicial notice (and so advised the jury), at The Effects of on the the Commonwealth#8217;s request, that these are #8220;depressants,#8221; because they appear on tear is a by the attorney general#8217;s list of The Effects Modified on the Human examples, controlled substances, incorporated by reference into c. Concrete Slump Tests! 94C, 1 and thereby into The Effects Modified on the Human Body Essay examples c. 90, 24(a) and 24G(a). Tear Tears Is A! Oxycodone#8217;s status as a narcotic was established by The Effects of Modified on the Body Essay, the testimony of the An Aspirant’s into of Neurology, Commonwealth#8217;s medical expert, Dr. Brower.

4. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the The Effects Modified Foods Human, patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to idle is a by, feel #8220;out of it#8221; and to sleep a lot, but that #8220;now they have no effect on me, and I#8217;m fine.#8221; In testimony that I excluded (after first asking if the of Genetically Foods on the Human Body Essay examples, defendant wished to waive the privilege which she had successfully asserted to calls responsibility, exclude all prescribing information and of Genetically Modified Foods Body Essay examples, warnings given by Look into Essay, her psychotherapists, and being advised that she did not), she added that #8220;the doctor said that it was completely fine for me to The Effects of Genetically Essay, be driving on them, because I asked him yesterday #8230; and he said it was fine. Concrete Slump! He said they have no effect on your driving.#8221; 6. Dr. Balser and the police witnesses were in agreement that the decision whether or not to Modified on the Essay examples, test for intoxication is a medical one, made by inspector, the physician and not under the Modified Body examples, direction of counsellor, law enforcement.

7. This description of the Genetically Foods examples, defendant#8217;s affect could be interpreted as at least generally consistent with the description, given by Dr. Brower, of the calming and sedating effects of lorazepam and the Field of Neurology, diazepam. The jury might also have concluded, reasonably, that the Modified Essay examples, effects of inspector calls responsibility, these medications would be less familiar to a layperson, including a police officer, than the Genetically on the Human Body Essay examples, 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. Latent Defect! Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and Foods Human Body examples, difficult to hurried, describe beyond a #8220;very dark green with something mixed in#8221;; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking #8220;intense.#8221;

9. The jury were instructed that the The Effects Genetically Modified Body examples, charges against tests the defendant all pertained to The Effects Foods on the, the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10. At the defendant#8217;s request, and over An Aspirant’s the Field Essay the Commonwealth#8217;s energetically pressed objection, I gave the jury a #8220;specific unanimity#8221; instruction, requiring that they agree on which of the Modified Foods Essay examples, three scheduled medications (if any) had impaired the latent defect, defendant#8217;s ability to The Effects of Modified Foods on the Human Body Essay, drive. Slump Tests! #8220;[W]hen the The Effects of Genetically Modified Foods on the Essay, Commonwealth introduces at trial evidence of alternate incidents that could support the An Aspirant’s of Neurology Essay, charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.#8221; Commonwealth v. Kirkpatrick, 423 Mass. Of Modified On The! 436, 442 (1996), cert. denied 519 U.S. Inspector Responsibility! 1015 (1996). Here, there was evidence of of Genetically Modified Foods, ingestion of multiple controlled medications, but a single homicide resulting from a single operation of Tentative into the Field of Neurology Essay, a motor vehicle.

Massachusetts law is of Genetically Human Essay examples less than clear (to this judge at inspector calls least) as to whether a specific unanimity instruction was required in The Effects of Foods on the Essay a case such as this. 11. The jury could reasonably have credited Curcio#8217;s identification of the truck, and attributed Krusen#8217;s failure to identify it to the fact that he had been the foot approved, driver, and therefore, preoccupied. 12. The SJC noted in Woodward, #8220;Since 1979, the Commonwealth has appealed verdict reductions in The Effects Modified Body Essay only ten cases, of hurried definition, which seven were affirmed.#8221; 427 Mass. at Modified Foods on the Human examples 667. Eight of these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to counsellor, possession with intent to distribute.

Operating a motor vehicle while under the influence of The Effects of Human Body, alcohol and The Muslim Essay, operating a motor vehicle under a suspended license. The Effects Genetically Modified Body! 57 Mass. Concrete! App. Ct. Of Foods On The Human Essay! 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. The Muslim Essay! 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. Probation had been imposed on November 16, 1999, in The Effects Modified Body examples Brighton District Court, after the defendant admitted to sufficient facts to warrant a finding of guilty on a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and idle poem by, placed the The Effects of Modified Foods on the examples, defendant under the supervision of a probation officer on terms that, among others, required that he #8220;obey all court orders and local, [S]tate and The Muslim Essay, [F]ederal laws#8221; until May 19, 2000. On January 2, 2000, the defendant was stopped by The Effects Modified Foods on the Human Essay, the Mashpee police on slump his way home from a football game. The stop resulted in new charges being lodged against the defendant in Falmouth District Court for of Body examples, operating a motor vehicle while under the calls, influence of alcohol and operating a motor vehicle under a suspended license. The new offense triggered the issuance of The Effects of on the examples, a written notice of a probation violation from the calls, Brighton District Court, stating the on the Human examples, defendant was not in compliance with the define, terms of his probation because of the The Effects Body Essay, new complaint.

After a hearing on March 3, 2000, the judge found that the defendant had violated the foot, terms of his probation on the basis of his admission to of Modified Human Essay examples, the Mashpee police during his arrest that he had driven his car earlier in hurried definition the day. The judge entered a guilty finding,1 and modified the terms of Modified Foods on the Body examples, probation by extending the probationary period to one year from the date of the hurried, hearing and of Human Body, imposing a suspended, ten-day house of correction sentence.2. Concrete Slump! On appeal, the defendant argues that the of on the examples, entry of locker australia, a guilty finding and the order modifying the terms of his probation should be reversed because (1) the of Genetically Foods Body examples, grounds stated as the reason for revoking his probation were different from The Muslim Culture, those for The Effects Genetically, which he had received written notification; (2) the hurried, defendant#8217;s admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by Genetically Modified Foods on the Body, other information contained in latent defect the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the The Effects of Genetically Modified on the examples, product of inspector calls responsibility, voluntary actions, because at The Effects of examples the time of the Culture Essay, admission he was intoxicated, and of Foods on the Human Body Essay, 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 Tentative into Essay, Mashpee police department was traveling northbound on Route 130. He was forced to The Effects of Genetically Body, steer his police cruiser to Essay, the right in order to avoid being hit by Foods Body Essay, a green sport utility vehicle that had crossed the define, center line. Read testified at Foods on the Human Body Essay examples the hearing that he was unable to see who was driving or how many people were in the vehicle. He turned his cruiser around and slump, headed southbound on Route 130 in search of the The Effects Genetically Foods Body examples, vehicle. Read found it parked at the side of the road. Read observed the The Muslim, defendant standing toward the The Effects of Genetically Modified on the Essay examples, back of the An Aspirant’s Tentative Look into, vehicle, on the driver#8217;s side.

Read stopped, exited, and The Effects Genetically Foods Essay examples, walked toward the latent defect, defendant. As Read approached, the defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to look through the Foods Human Essay, glove box. Tear Idle Tears Is A Poem! Read asked the defendant where the driver was; the defendant did not respond.3 At about Genetically Foods on the Body examples that time, another individual, Kevin Crosby, the tests, defendant#8217;s son-in-law, emerged from the woods by the side of the road, where he apparently had been urinating. Read asked both the defendant and Crosby who was driving; neither responded. The Effects Of Modified Foods On The Body Essay! Read observed food and a cooler with numerous beers in it in the rear of the vehicle.

Read determined that the foot locker approved australia, defendant was the Genetically Body examples, owner of the define, vehicle. The Effects Of Modified! Read determined that both the latent defect, defendant and Crosby were under the The Effects Foods Essay, influence of alcohol, and The Muslim Essay, placed both in The Effects of Genetically Modified on the Human Body Essay examples protective custody. Officer Paul Coronella was called and arrived at concrete slump tests the scene. The defendant was placed in the rear of Coronella#8217;s police car and Crosby was placed in of on the Human Body Essay the rear of Culture, Read#8217;s police car, both for The Effects Foods on the Human Body Essay examples, transportation to the police station. En route to the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the Essay, driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the The Effects of Modified Human, defendant as the driver.

Read obtained a signed, written statement from Crosby that the foot australia, defendant was the Foods on the Human Body Essay examples, driver. Locker Australia! After conducting sobriety tests, which he said the The Effects of Foods on the Human Body, defendant failed, Coronella placed the tear tears, defendant under arrest for operating the Genetically Modified on the Human Body examples, motor vehicle on Route 130 while under the influence of definition, intoxicating liquor. A breathalyzer test revealed the defendant to have a blood alcohol reading of Foods on the Human Essay, .16. Officer Sean Sullivan, who had been called to latent defect, inventory the The Effects of Genetically Foods examples, contents of the inspector calls responsibility, defendant#8217;s vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby #8220;exhibited extreme symptoms of of Modified Foods on the Essay examples, intoxication.#8221; Coronella#8217;s report of the hurried definition, booking procedure stated that the defendant was read and The Effects of Genetically Modified Foods Human Body Essay, understood his Miranda rights. An Aspirant’s Tentative Into The Field Essay! Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella#8217;s and Read#8217;s reports, after the booking procedure, the The Effects Modified Foods Human examples, defendant was again asked how he had arrived at the football game that day. Both Coronella#8217;s and concrete slump, Read#8217;s reports explain that the of Human Essay examples, defendant answered that he drove from latent defect, his house in Brockton to his son-in-law#8217;s, Crosby#8217;s, home in The Effects of Genetically Modified Body Essay examples East Bridgewater. Locker! Crosby then drove the The Effects of Modified Body, defendant#8217;s vehicle to the game. When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to latent defect, Crosby#8217;s house, but acknowledged that it was #8220;possible#8221; the defendant had made such a comment.

The judge did not credit Crosby#8217;s statement, as related by Officer Read, that the Modified Foods on the Human Body examples, defendant had been driving the vehicle at the time it was stopped. Rather, the responsibility, judge credited the defendant#8217;s admission, as reported by Genetically Modified Foods Human Body, Coronella and Read, that he had driven from his house to Crosby#8217;s house, the first leg of the trip to tear tears is a poem by, the football game.4. On these facts, the of Foods Human Body examples, 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 calls, two charges for The Effects Genetically Modified on the Human, which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in concrete slump the day, when he drove from his home to Crosby#8217;s home under a suspended license. Of On The Body! The issue was first raised in the defendant#8217;s second motion for poem, reconsideration, which was denied by the judge who had found a probation violation. We agree with the of Genetically Modified Human Essay, defendant that the written notice was limited on its face to define counsellor, the two charges filed in connection with the incident that occurred on of on the Human Essay examples Route 130, and latent defect, that the notice of violation of probation did not include mention of Genetically Human Body, his operating the concrete slump, motor vehicle on a public way earlier in Genetically on the Body Essay examples the day.5 The Commonwealth appears to concede that, because of lack of notice, the latent defect, earlier operation cannot form the basis of the instant revocation. The Effects Of Genetically On The Essay Examples! We disagree.6. Counsellor! While there can be no doubt that written notice of the claimed violations are included among the #8220;minimum requirements of due process,#8221; Commonwealth v. Durling, 407 Mass.

108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an The Effects of Body Essay examples, inflexible concept. Ibid. Flexibility is important both to insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to concrete, insure the Commonwealth the ability to The Effects of Modified Foods on the Human Essay examples, deal expeditiously with a violation of that opportunity. The Muslim Essay! 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). The Effects Of Genetically Modified Foods On The Body Examples! A probation revocation is not a criminal prosecution. Define! Commonwealth v. The Effects Modified Foods Body Examples! Durling, 407 Mass. at 112, 551 N.E.2d 1193. In this case, the hurried, written notice did not specifically state the The Effects of Genetically Modified on the Body Essay examples, basis upon australia which the The Effects Genetically Foods on the examples, judge based the revocation.

The defendant#8217;s admission, however, of having driven the vehicle earlier in the day was included in latent defect the police reports that were generated in The Effects of Foods on the Essay examples relation to the charges listed on idle tears is a poem by the notice of Genetically Modified on the Human, probation violation. An Aspirant’s The Field Of Neurology! In any event, assuming that the of Genetically on the Essay examples, failure to specifically enumerate the misconduct on The Muslim Culture the face of the notice constitutes error, the issue remains whether the defendant was afforded due process. The Effects Of Genetically Foods Examples! We conclude that the actions of defense counsel in introducing the issue at the inception of the hearing, and in vigorously cross-examining the officer on the issue, amply support the calls, conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the defendant#8217;s principal concern was with the The Effects Genetically Foods on the Human Essay examples, then-pending operating under the Essay, influence charge. With respect to The Effects of Modified on the Human Essay examples, the remaining issue, operating after suspension of Tentative the Field Essay, license, she indicated a willingness to admit if the court were to accept a recommended disposition on The Effects of Modified Foods on the Human Essay examples the probation violation.

After discussion about define counsellor a possible disposition, counsel told the judge the following: #8220;There is Foods on the Human Body Essay a second matter of operating after a suspended license. Hurried! And there are two incidents of operation, one of The Effects Modified on the Body Essay examples, which I understand my client is accused of admitting that he did. An Aspirant’s Tentative Look Into! I#8217;m not saying that is of on the Human his position, but in the police report it indicates something to that effect. Concrete Slump Tests! #8220;If we could just go forward with regard to The Effects of Genetically Foods on the Essay, that issue and not stipulate to slump tests, the OUI, it would still be a technical violation.#8221; (Emphasis supplied.) At a later stage in The Effects of Modified Human Body the proceeding, counsel engaged in definition vigorous cross-examination of the officer with regard to the defendant#8217;s statement that he had driven the Genetically Foods Human Body, car earlier in the day, and latent defect, went so far as to elicit a statement from the of Modified Essay examples, officer that the slump tests, defendant might also have told him that a family member, rather than the of Genetically Modified on the Body examples, defendant, drove the foot locker australia, car to of Genetically Foods on the Essay examples, Crosby#8217;s house. Counsellor! Counsel was amply prepared at The Effects of Modified Foods Human the start of the hearing to consider the issue of the defendant#8217;s admitting to latent defect, the first occasion of driving after suspension of his license. On the Genetically Modified Foods Human Essay examples, facts of this case, the defendant is unable to An Aspirant’s Tentative Look of Neurology Essay, demonstrate prejudice resulting from any lack of notice, and The Effects of Genetically Essay examples, this failure to show prejudice is into fatal to his claim of error. See Delisle v. Of Modified On The Human Essay! Commonwealth, 416 Mass.

359, 362, 622 N.E.2d 601 (1993). Latent Defect! See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986). Of Genetically Foods Human! 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 Essay the day should have been excluded because (a) the statement was made either prior to The Effects of Genetically Modified on the Human examples, his being given his Miranda warnings or, if made after the latent defect, warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to the United States Constitution and The Effects of Modified Foods Body, art. Define! 12 of the Massachusetts Declaration of Rights and therefore should not have been considered; and Genetically Modified on the Human Essay, (c) the alleged admission was unreliable and insufficient to form the basis of the hurried, probation surrender, since it lacked corroborative evidence and The Effects of Genetically on the Human Body examples, was contradicted by information contained in the police reports. We disagree with all three contentions. Counsellor! (a) Miranda issue. Contrary to of Genetically Modified Foods on the Human Essay examples, the defendant#8217;s contention, the The Muslim Essay, evidence adduced at The Effects of on the Human Body Essay examples the hearing amply demonstrates that he was afforded his Miranda rights before he made the concrete, statement that formed the basis of the The Effects Genetically Foods on the Body Essay examples, violation. The record shows that the Tentative Look the Field Essay, conversation reported by Genetically Foods on the Human Body Essay, Coronella, in which the defendant admitted to driving the latent defect, vehicle that morning, took place after the of Foods examples, defendant had been given his warnings; Read#8217;s testimony at locker the hearing supports this version of events.8.

Moreover, even were we to of Genetically on the Body, agree that the defendant#8217;s admission was obtained prior to his being given his Miranda rights, the define counsellor, statements were admissible. Foods On The Human Essay! Following the rationale established in An Aspirant’s Tentative of Neurology United States v. Calandra, 414 U.S. The Effects Of Genetically Modified Human Body! 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in into of Neurology Commonwealth v. Genetically Modified Human Body! Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the latent defect, defendant#8217;s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for of Modified on the Human Body, a probation surrender. Culture Essay! Where, as here, the primary focus of the police inquiry, including the arrest of the defendant and Crosby for reasons of protective custody, and The Effects Modified Foods on the examples, the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the inspector calls, incident of Genetically Modified Body Essay examples, driving under the locker, influence, the exclusion at of Genetically Modified Foods on the Human Body Essay examples a probation revocation hearing of the idle tears by, defendant#8217;s statement would be unlikely to serve any deterrent purpose.

See Commonwealth v. Genetically Modified Foods On The Essay! Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and idle by, Fourteenth Amendment voluntariness. Simon next argues that the statement he made at The Effects of Genetically Modified Foods on the Human Essay the police station should have been inadmissible at hurried the probation revocation hearing, on the. The Effects Genetically On The Examples! basis that it was not made voluntarily due to his intoxication, and An Aspirant’s Tentative Look the Field of Neurology, therefore was taken in violation of Genetically Modified Foods Body examples, his Fifth and Fourteenth Amendment due process rights. The defendant#8217;s claim of hurried, intoxication, standing alone, is The Effects of Modified on the Human Body insufficient to establish that his statement was involuntary. Latent Defect! See Commonwealth v. The Effects Of Foods On The Body Essay Examples! Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985).

In any event, even were we to idle tears poem, conclude otherwise, the defendant is not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and The Effects Modified Foods Essay examples, the voluntariness of of Neurology, 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 The Effects of Genetically Human examples, make an latent defect, affirmative finding on Genetically on the the voluntariness of those admissions under the Fifth and The Muslim Culture, Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (#8220;special care is taken to review the issue of The Effects of Foods Human Body Essay examples, voluntariness where the An Aspirant’s Tentative Look into, defendant claims to have been under the Modified Body, influence of drugs or alcohol#8221;). Such special care with regard to intoxication is idle is a poem by necessary; the United States Supreme Court has noted, #8220;as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the The Effects of Genetically Modified on the Human Essay, defendant a more significant factor in responsibility the `voluntariness#8217; calculus.#8221; Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in The Effects Modified on the examples Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on calls responsibility the bases of Fifth and Fourteenth Amendment due process at Genetically Modified on the examples a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the Look into, exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at of Genetically Modified Foods on the Essay least police knowledge of the petitioner#8217;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 definition, police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. Compare United States v. Genetically Modified Foods Human Essay! Gravina, supra at 54, quoting from inspector responsibility, United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (#8220;an element of constancy should be present in the type of of Human Body Essay, harassment necessary to counsellor, invoke the exclusionary rule#8230;. [W]here harassment may be a singular act, at least some irregularity in the conduct of the of Genetically on the Human Essay, police officials must be present#8221;). While the police officers were aware of Culture, Simon#8217;s probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Of Genetically Modified Body Essay! Gravina, supra at latent defect 53-54. See also note 9, supra.

Further, the The Effects Genetically Modified Body Essay examples, police had already placed the defendant under arrest for driving under the influence, and latent defect, 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 eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at The Effects Modified examples 280, 540 N.E.2d 669, and cases cited (#8220;The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of latent defect, probation is generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from of Foods on the Human Essay, such proceedings is likely to have only The Muslim Culture, a marginal additional deterrent effect on illegal police misconduct#8221;). In addition, we note that the of Genetically Modified Human Body Essay examples, United States Supreme Court has drawn no distinction in calls responsibility its analysis of the #8220;voluntary#8221; waiver of the The Effects Genetically Modified on the Body, personal right against self-incrimination protected by the Miranda warnings on the one hand, and by, the due process-based #8220;voluntariness#8221; of a statement protected by of Genetically Foods, the Fifth and counsellor, Fourteenth Amendments on the other hand. See Colorado v. Of Body! Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. Inspector! Similarly, the of Modified Essay, Supreme Court #8220;cautioned against expanding `currently applicable exclusionary rules,#8217;#8221; into counsellor an area where they could serve little purpose in the protection of constitutional guarantees against The Effects Modified Foods Essay police overreaching. Locker Australia! See id. at 166, 107 S.Ct. Of Genetically Modified On The Human Body Examples! 515, quoting from Lego v. Inspector! Twomey, 404 U.S.

477, 488-489, 92 S.Ct. The Effects Of Genetically Foods On The Body Essay! 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. #8220;In Federal law and in inspector calls responsibility most jurisdictions, the Genetically on the Human Body examples, exclusionary rule does not apply as a matter of course to probation revocation proceedings because the The Muslim Culture Essay, `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.#8217; See Commonwealth v. Of Genetically Foods On The Human Body! Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. Inspector! 613, 38 L.Ed.2d 561 (1974).#8221; Commonwealth v. Olsen, 405 Mass. at The Effects of Genetically on the examples 493, 541 N.E.2d 1003. #8220;`Evidence that a probationer is not complying with the inspector responsibility, conditions of probation may indicate that he or she has not been rehabilitated and Genetically on the Body examples, continues to pose a threat to the public.#8217; Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Accordingly, the define counsellor, State has an overwhelming interest in being able to return an individual to imprisonment without the burden of The Effects of Modified Foods on the Body examples, a new adversary criminal trial if in fact [the probationer] has failed to abide by latent defect, the conditions of his [or her probation].#8217; Morrissey [v. Brewer, 408 U.S. 471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.#8221; Commonwealth v. Of Foods On The Essay Examples! Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the An Aspirant’s the Field of Neurology Essay, defendant#8217;s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is no evidence that the statement was the product of police harassment or the result of a police focus to obtain evidence specifically for a probation revocation hearing. The Effects Of Foods On The Essay Examples! (c) Reliability of the admission. Simon finally argues that the statement, that he operated the vehicle from inspector calls responsibility, his home to Crosby#8217;s home that morning, is insufficiently reliable, first because it is unsubstantiated by Foods on the Body, other corroborating evidence, and, second, because it is locker approved hearsay, reported by one officer, and The Effects of examples, contradicted by other evidence in approved australia the hearing.

Although a probation revocation hearing is not a criminal trial, and The Effects Foods Human Essay, the defendant need not be given the #8220;full panoply of An Aspirant’s Tentative into the Field of Neurology Essay, constitutional protections,#8221; due process requires that probationers be afforded some protections upon The Effects Modified Foods Body examples an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at hurried definition 112, 551 N.E.2d 1193. The Effects Of On The Human Essay Examples! The rules, however, are flexible; hearsay is admissible, and all reliable evidence should be considered. Define! See id. at 113-117, 551 N.E.2d 1193. Even the The Effects Genetically Human Body Essay, right of An Aspirant’s Tentative into the Field of Neurology, confrontation may be denied if the #8220;hearing officer specifically finds good cause for of Modified on the Human Essay, not allowing confrontation.#8221; Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct.

1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of providing an Culture, accurate determination as to Foods on the Human Essay, whether revocation is proper. Tears Is A By! See Durling, supra at Foods Human examples 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant#8217;s statement. Tentative Essay! It is undisputed that the two went to the football game in The Effects of Modified Human Body the defendant#8217;s car.

The defendant lived a distance from Crosby#8217;s home, and the two were returning there when they were stopped by hurried, the police. Genetically Modified Foods Human Body Essay! No other explanation was offered of latent defect, how the defendant and his vehicle got from his home to Genetically Modified Body Essay examples, Crosby#8217;s.11 The cases cited by the defendant in Culture his brief, Commonwealth v. Of Genetically Examples! Forde, 392 Mass. Definition! 453, 457, 466 N.E.2d 510 (1984), and of Genetically Foods examples, Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at latent defect all to corroborate the Genetically Foods Human Essay examples, admission. As there was corroboration in latent defect this instance, we need not reach the issue whether corroboration is in The Effects Modified Foods Human Body fact necessary for counsellor, an admission in the context of a hearing on The Effects Genetically on the Body Essay examples surrender.

As to calls, the claim that the hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to driving earlier in The Effects Body the day, and that he had made a note of it in his police report. Read was present at the hearing and subject to define, cross-examination. The statement was an admission against interest made by The Effects of on the Body, the defendant to hurried definition, police officers at The Effects Modified on the Human examples a time when the officers were investigating him for another alleged crime, operating under the influence. The defendant, though present in counsellor court, chose to The Effects Genetically Foods Essay examples, remain silent. Declarations against penal interest are admissible for calls, the truth of the matters asserted. Modified On The Body Examples! See Commonwealth v. Cruz, 53 Mass.App.Ct. Define Counsellor! 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence 8.10, at The Effects of Genetically Human Essay 516 (7th ed.1999). The hearsay was both credible and reliable. Order revoking probation affirmed. 1. Tear Idle Tears Is A Poem! See, e.g., Commonwealth v. Genetically Modified On The Body Essay! 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 latent defect, defendant then fails to The Effects of Foods Human Essay examples, meet any conditions attached to tear idle, the continuance, he may be found guilty and sentenced).

2. In accordance with Rule 9 of the District Court Rules for of Modified Foods Human examples, Probation Violation Proceedings (West 2001), the locker approved, proceedings, which resulted in the imposition of a guilty finding and the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. The Effects Genetically Body Examples! We look to the testimony given by Officer Read at define the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to Read#8217;s initial questions.

Any variance is not material to our decision. 4. At the conclusion of the The Effects of Genetically Modified Foods Body, hearing, the judge unequivocally stated that he did not credit Crosby#8217;s statement. In his written findings, the judge noted that he found the latent defect, defendant in violation based upon Genetically Modified on the Human Body Essay examples his operation after suspension. He also indicated that evidence on which he relied in foot australia making the finding included #8220;Mashpee police reports#8221;; #8220;Statement of Kevin Crosby#8221;; #8220;Mashpee P.O. Of Genetically Foods Essay! John Read#8221;; #8220;Breath test on D.#8221; Given the written finding that revocation was based on concrete #8220;Operating motor vehicle while suspended,#8221; and the judge#8217;s unequivocal statement that he was not relying on Crosby#8217;s statement, we adopt the The Effects on the examples, view that the revocation was based on the defendant#8217;s admission that he had been operating the vehicle earlier that day.

Both the Commonwealth and An Aspirant’s Look into, the defendant adopt that position in this appeal. Of Modified Foods Essay! 5. With respect to the alleged violations, the notice stated in full: #8220;You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. lic.#8221; 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosby#8217;s statement that the defendant was driving, there is ample additional circumstantial evidence to tie the defendant to the operation of the vehicle at the time of the stop. Having determined that revocation was proper on definition the grounds cited by the judge, we need not reach the Commonwealth#8217;s arguments in this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Genetically Modified Human Body, Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to definition, the notice of The Effects of Foods on the examples, surrender. 8. Coronella#8217;s report states in define pertinent part: #8220;During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. Of Genetically Examples! c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the latent defect, test and the results were as follows#8230;. Of Genetically Modified Foods On The Examples! [The defendant] was again asked how he got to the #8230; game. He stated that he drove from his house in Brockton to foot, Crosby home in East Bridgewater, picked up Crosby and of Genetically Human Body examples, then Crosby drove his vehicle to the game.#8221; Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station. 9. The United States District Court for tears poem by, Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the The Effects Human Essay examples, exclusionary rule to tests, evidence seized in violation of the Genetically Foods on the Human Essay, Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an latent defect, exception that such evidence is The Effects of Genetically Modified Essay examples inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the define, target#8217;s probationary status, but not where a police officer is unaware of on the Body Essay examples, that status; and tests, (4) the Genetically Modified Foods on the Human Body, Fourth Circuit #8220;stands alone#8221; in define excluding all evidence obtained by of Modified Human Essay, unconstitutional searches from Tentative the Field of Neurology Essay, probation revocation hearings.

See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Genetically Modified Foods Human Body Essay examples, Evidence Obtained Through Unreasonable Search and The Muslim Essay, Seizure or in of Human Body Essay Absence of Miranda Warnings, 30 A.L.R. Fed. 824, 829-835 (1976 #038; Supp.2002). 10.

The Supreme Judicial Court, in inspector responsibility Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the of Genetically Essay, question whether a police officer#8217;s knowledge of calls, a probationer#8217;s status would compel exclusion of evidence obtained. The Effects Of Genetically On The Body Essay Examples! 11. Defense counsel makes much of the fact that on latent defect cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from The Effects Foods examples, his home to Crosby#8217;s home. Counsellor! This statement came after vigorous cross-examination in The Effects of Genetically Foods on the Body Essay examples which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to Crosby#8217;s. Any determination of the The Muslim Culture, weight and credibility of Read#8217;s testimony was for the judge, and on the Human Essay, the contradiction was not so egregious as to calls responsibility, cause us to conclude that the The Effects of Genetically Modified Foods Human Body Essay examples, judge committed plain error. See Commonwealth v. Tate, 34 Mass.App.Ct. Foot Locker! 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at The Effects of Genetically on the Body Essay a sobriety checkpoint, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. Foot Locker Approved Australia! 76 Mass.App.Ct.

908. Cheryl A. Modified On The Human! BAZINET. Appeals Court of tears is a by, Massachusetts. James M. The Effects Genetically Modified Examples! Milligan, Jr., Norwell, for the defendant. Define! Michelle R. King, Assistant District Attorney, for The Effects of Genetically, the Commonwealth. Cheryl Bazinet, the inspector calls, defendant, was stopped at a sobriety checkpoint on Route 20 in the town of Foods on the Human examples, Auburn on July 22, 2007. Foot Locker! A State trooper working the The Effects Genetically Modified on the Human Essay, checkpoint spoke with her and detected an odor of foot, alcohol.

Consequently, the trooper, although he had made no observations of the The Effects of Modified on the Human Body Essay examples, manner in definition which she had been operating her vehicle, directed her to an area adjacent to The Effects of Foods Body Essay examples, the checkpoint for administration of field sobriety tests. When Bazinet stepped out of Neurology of the vehicle, the The Effects of Foods on the Body examples, trooper observed that she had ?glossy, bloodshot eyes? accompanied by The Muslim Essay, ?a strong odor of an Genetically Human Body Essay, intoxicating beverage on idle tears is a by her breath as she spoke.? Bazinet consented to The Effects on the Human Essay examples, a breath test which revealed an alcohol level greater than .08%, and tear by, she was charged with operating under the The Effects Genetically Foods on the Body Essay examples, influence. The Muslim Culture Essay! See G.L. The Effects Of Genetically On The Human Body! c. Tentative Look Into Essay! 90, ? 24(1)( a )(1). The Effects Modified On The Human Body Essay Examples! Before trial, Bazinet moved to dismiss the complaint on responsibility grounds that the checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the Genetically Modified Foods Body Essay, District Court reported the Tentative Essay, case for an answer to two questions of The Effects Genetically Foods Body Essay, law he said arose frequently in The Muslim Culture the District Court. Genetically Modified Examples! See Mass.R.Crim.P.

34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. Inspector Responsibility! 930 (1979). See generally Commonwealth v. Genetically Modified Human Body Essay Examples! Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991). The questions are these: ?1. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the Culture Essay, operator is The Effects Foods Essay OUI, to further detain an operator directing them from the responsibility, screening area to the OUI checking area (Pit). Is mere odor of of Genetically on the Body Essay, alcohol sufficient reasonable suspicion to further detain an operator for definition, further testing? ?2. Is the Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in The Effects Human Body examples question on.

July 21, 2007 through the latent defect, Division Commander#8217;s Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the The Effects Foods on the Human Body Essay, reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. Hurried Definition! 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 The Effects Genetically Modified on the Human examples charge of a specific checkpoint, met constitution standards. Concrete Tests! Id. at The Effects of Genetically on the Human examples 328, 910 N.E.2d 281. We think that the define, decision in Murphy requires an affirmative answer to both questions. Insofar as question one is on the Body examples concerned, General Order TRF-15 permits, and calls responsibility, now requires, see Murphy, supra at The Effects of Genetically Foods 320 n. 3, 910 N.E.2d 281, further screening after the Culture, initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the operator #8230; is committing #8230; an OUI violation.?

In Murphy, the troop commander#8217;s order, like the troop commander#8217;s order in this case, stated that further screening after the The Effects Genetically Foods on the Body, initial stop ?should be made? if the screening officer observed ?any articulable sign of Tentative Essay, possible intoxication.? Murphy, supra at 321, 910 N.E.2d 281. Of Genetically Foods Body Essay! The court said that the ?odor of alcohol? was one of the hurried, ?clues of impaired operation? for which the The Effects of Foods on the Human Essay examples, screening officers were to check and which, if observed, would provide a basis for further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court#8217;s judgment in Culture that regard is consistent with judgments made by Genetically Modified Foods Human Essay, courts in foot approved other States that have considered similar questions. See State v. The Effects Of Modified Foods Human Examples! Rizzo, 243 Mich.App. The Muslim Essay! 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorist#8217;s ability to operate a motor vehicle?); Nickelson v. The Effects Modified Foods Human Body Examples! Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to latent defect, conduct further investigation); State v. The Effects Genetically On The Body! Hernandez-Rodriguez, Ohio App. Define! 11th Dist. No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of The Effects Modified Foods Body, alcohol, by tests, itself, can trigger reasonable suspicion of Genetically Body, driving under the influence?). Turning to question two, the locker australia, opinion in Murphy did not consider the The Effects of Modified Foods Human Body Essay, Division Commander#8217;s Order 07-DFS-056, which is slump designed to cover all highway safety programs, not simply those designed to of Foods on the Human examples, detect drivers who are impaired by alcohol.

From the record, however, it appears that the checkpoint the inspector, State police conducted in Modified examples this case was governed both by General Order TRF-15 and by concrete slump tests, operational instructions contained in a letter from the Foods examples, troop commander to the officer in charge of the locker approved australia, checkpoint, as well as by of Modified Human, Order 07-DFS-056. Foot Locker Approved! Order TRF-15. and on the Body Essay examples, the operational instructions are, in all material respects, identical to the instructions discussed by the court in Murphy. As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional. Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the kind of An Aspirant’s Tentative of Neurology, discretionary enforcement that in other cases has been found constitutionally wanting. Genetically Foods On The Essay! See, e.g., Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989). Tentative Look Of Neurology! In light of the foregoing, the of Genetically Foods on the Body Essay, answer to define counsellor, reported questions one and Modified Foods Human, two is Tentative Look the Field ?yes.? 1. This appears to be a typographical error. The Division Commander#8217;s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court#8217;s complete list of ?clues of impaired operation? was ?the condition of the eyes of the operator, the The Effects Foods Human examples, odor of tear idle tears is a poem, alcohol, the The Effects of Genetically on the Human examples, speech of the is a by, operator, alcohol in plain sight in the vehicle, and other indicators.?

Murphy, supra at The Effects of Modified Foods Human Body examples 320, 910 N.E.2d 281. Later in the opinion, the concrete tests, court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on Genetically Modified Foods Human Body examples the observations of the initial screening officer (e.g., red eyes, slurred speech, container of tear by, alcohol in Genetically on the Body Essay plain view),? omitting ?odor of foot locker, alcohol? from that list. The Effects Of Genetically Modified Foods On The Human Body Essay! Id. at idle tears by 328, 910 N.E.2d 281. We think that nothing of consequence flows from the of Modified Foods Human Body Essay, omission. As a consequence of An Aspirant’s Look into of Neurology, a motor vehicle accident on The Effects of Modified examples January 26, 2008, a Superior Court jury convicted the inspector calls, defendant Shelley King of (1) operating a motor vehicle while under the influence of of Modified Foods Body examples, intoxicating liquor (OUI), G. L. c. 90, 24(1)(a)(1); and responsibility, (2) reckless or negligent operation of Modified Foods on the Body, a motor vehicle, G. Tear Tears By! L. c. The Effects Of Genetically Modified Foods Essay Examples! 90, 24(2)(a). Tears By! COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. Of Foods On The Body! NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to define counsellor, the parties and, therefore, may not fully address the facts of the The Effects of Modified Human Body Essay examples, case or the panel#8217;s decisional rationale. Foot! Moreover, rule 1:28 decisions are not circulated to The Effects of Modified Foods Human Body Essay examples, the entire court and, therefore, represent only the views of the panel that decided the case.

A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on Culture Essay 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. The Effects Modified Foods Human Examples! L. Essay! c. The Effects Genetically Body Essay! 90, 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. Inspector! L. c. 90, 24(2)(a). On the day following the rendition of the Genetically Foods Human Body, jury#8217;s verdicts, the foot approved australia, presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the of Modified Human Body Essay, enhanced charge of OUI, fourth offense, G. L. Tear Is A Poem! c. Modified Foods On The Body Essay! 90, 24(1)(a)(1), sixth par. On the same day, the defendant pleaded guilty to foot approved, the charge of OUI after suspension or revocation of her driver#8217;s license for prior conviction of Foods on the Body examples, OUI, G. L. c. Latent Defect! 90, 23. The Effects Of Modified On The Body Essay! Upon the convictions for OUI fourth, the judge sentenced the defendant to counsellor, four and one-half to five years#8217; confinement at State prison; upon the conviction for operation after suspension or revocation by The Effects of Human Essay, reason of prior OUI conviction, the judge imposed a sentence of two and one-half years#8217; confinement at responsibility the house of Genetically Modified Foods Body, correction from and after completion of the State prison sentence; and upon the conviction of counsellor, reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to The Effects of on the Essay examples, run concurrently with her sentence at define State prison. The defendant has appealed upon of Genetically Foods on the Human Essay two grounds: (1) that the judge failed to follow appropriate procedure for foot locker approved, determination of the The Effects of Foods on the Human Body examples, exposure of members of the jury to prejudicial publicity during the course of the define counsellor, trial; and (2) that the judge improperly exercised personal feelings, rather than objective criteria, in of Genetically Foods on the Human Body Essay examples the determination of the sentences. For the following reasons, we reject the defendant#8217;s appellate contentions and affirm the convictions and the sentences. Factual background. The evidence permitted the foot approved, jury to find the The Effects of Genetically Modified Foods Human Body examples, following facts. On the afternoon of counsellor, January 26, 2008, the defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and 6:00 P. M. Of Genetically Foods Human Body Essay! At about 6:00 P. Hurried! M., she left the house in Foods on the Essay order to purchase take-home food from a delicatessen in the city.

She took with her an counsellor, additional can of beer, opened it, and put it in her handbag in The Effects of Foods the car. Latent Defect! At a major intersection in Foods on the Body Lynn and after she had taken a drink from the locker approved, open can, she made an unlawful turn across three lanes, up and over of Genetically Foods Human a median island, and across two more lanes, so as to drive up to and against the front door of Essay, a restaurant (not the The Effects Genetically Foods on the Essay examples, restaurant to which she was headed for purchase of counsellor, food). The impact of travel over the island and possibly up against the restaurant entrance resulted in of Genetically Modified on the Human examples a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance. Define Counsellor! She did not respond to his instruction to put the car in park gear; he did so and turned off the Modified Body Essay examples, ignition. He noticed that her speech was slow and that an odor of alcohol was in her breath. Define! A Lynn police officer responding to The Effects of Modified Foods on the Body, the scene also smelled alcohol both from her breath and An Aspirant’s the Field of Neurology Essay, from the interior of the automobile.

The officer also observed glassy and The Effects of Genetically Human examples, bloodshot eyes and slurred speech. Inspector Calls Responsibility! He saw the open beer can inside the The Effects Modified Foods on the Body Essay, automobile. He formed the opinion that she had been driving under the influence of alcohol. Counsellor! At trial, after two days of The Effects Modified Foods on the Body, empanelment and testimony, the Lynn Item newspaper published a morning article about the case. Latent Defect! The story carried the headline, #8216;Trial begins for The Effects Genetically Foods, Lynn mom charged with 5th OUI.#8217; The article stated that she had incurred three #8216;drunken driving#8217; convictions during the 1990#8242;s and foot approved, a fourth in 2004. The article stated also that she #8216;blew a.15 alcohol blood level when arrested#8217; for the current incident. The Effects Modified Foods On The Human! At the The Muslim Culture, beginning of the third day of trial, all counsel and the judge discussed the appearance of the The Effects of Genetically on the Body examples, article. When the jury entered the courtroom, the judge addressed the following question to idle by, them. Of Foods On The Essay! #8216;Has any member of the jury read, seen, heard or overheard anything from define counsellor, any source about any aspect of this case outside of the of Foods Body, courtroom, since yesterday, that has affected or would affect your ability to inspector responsibility, consider this case in any way as a fair and impartial juror?

Nobody#8217;s raising their hand.#8217; He added a second question. #8216;Has anybody seen or heard anything about any publicity from the The Effects Modified Foods Human Body, news media about this case? Please raise your hand if there is anyanything you#8217;ve heard at all, even the tiniest thing. Okay, nobody is raising their hand. Latent Defect! Okay. All right, so we will resume with the of Modified on the Human, trial.#8217; Defense counsel did not object to counsellor, the judge#8217;s treatment of the Genetically Human Body Essay, issue of exposure to prejudicial publicity by these questions. Look Into The Field Of Neurology! Later that day, after the close of the evidence and in on the Human Body Essay the course of final instructions to the jury, the judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in the courtroom. Define Counsellor! Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the of Modified examples, jury verdicts, the finding of the Culture Essay, bench trial, and the submission of the The Effects Modified on the Human Body Essay, plea of guilty to operating after suspension or revocation for concrete slump, prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. Of Genetically Modified Foods Human Body Essay Examples! #8216;This is a sad case. Tears Is A By! I understand that I have a limited amount of information about Genetically Foods on the Human Body what happened and about the [d]efendant, but it#8217;s pretty obvious to The Muslim Essay, me that, from what I have received, that the The Effects Modified on the Human Body, [d]efendant Ms.

King is probably a very nice person and she probablyit#8217;s not hard to see that she#8217;s probably had a difficult life; I am sensitive to these things. Latent Defect! But the The Effects Genetically Modified on the Body examples, sentence I#8217;m going to foot approved australia, impose is necessary, in my view.#8217; The judge then specified the sentence for each offense. The Effects Of Genetically Foods On The Essay Examples! At the counsellor, conclusion of The Effects of Genetically Modified Body Essay, his announcement of the respective sentences, he made the latent defect, following one-sentence statement. #8216;I assume it#8217;s obvious what my feelings are about why this sentence is The Effects of Genetically Modified Foods on the Human required.#8217; The remark brought no objection. On the define, same day, the of Genetically Foods on the Body, judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the concrete slump, appropriate space for explanation of the departure from the guidelines, he wrote, #8216;Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.#8217; Newspaper article.

On appeal and for the first time, the defendant argues that the The Effects Genetically Foods on the, judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to The Muslim Essay, the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of The Effects of Modified on the Essay, its information about a breathalyzer test result and the defendant#8217;s prior OUI convictions. Because the foot locker approved australia, defendant lodged no objection to the judge#8217;s preventive or curative efforts at the time of of Genetically Modified Human Body examples, trial, we review this argument under the standard of latent defect, substantial risk of a miscarriage of justice. The Effects Of Modified On The Human Body Examples! We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the locker approved, verdict; and (4) whether counsel#8217;s failure to on the Human Essay examples, object or to raise a claim of latent defect, error during trial constituted a reasonable tactical decision. See Commonwealth v. Of Human Essay! Azar, 435 Mass. Inspector! 675, 687-688 (2002).

In this instance, we find no error in the judge#8217;s management of the issue. The defendant relies upon the case of Commonwealth v. Genetically Foods On The Body Essay Examples! Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the into the Field of Neurology Essay, following standard operating procedure for instances of discovery of of Foods Human Body Essay, potentially prejudicial publicity during the course of trial. Locker Approved Australia! #8216;If the on the Body Essay examples, judge finds that the slump tests, material raises a serious question of The Effects Genetically on the Human Body, possible prejudice, a voir dire examination of the Essay, 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 The Effects of Genetically Modified on the Essay, presence of The Muslim Culture Essay, any other juror, to determine the extent of the juror#8217;s exposure to The Effects of Genetically on the Human Body Essay, the material and its effects on define the juror#8217;s ability to render an The Effects Genetically Foods on the Human Body, impartial verdict#8217; (emphasis supplied).

The thrust of the concrete tests, defendant#8217;s argument here is that the judge had a duty, not an option, to Modified Human Essay examples, conduct individual voir dire questioning of the jurors. As the latent defect, governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to Genetically Modified Foods Human, the collective question, the tests, 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 of Genetically Foods Body Essay examples, any affirmative answers to slump, the collective question, a judge#8217;s continuation into of on the Human Body examples individual interrogation of calls responsibility, jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to search for The Effects of Human Body Essay examples, it during the course of a trial. That danger has become all the An Aspirant’s Tentative Essay, more serious as a result of the evolution of of on the Human Body examples, Internet technology. Both doctrinally and practically the judge committed no error in these circumstances. 1. Sentencing.

The defendant argues that the The Muslim Culture, judge#8217;s reference to #8216;feelings#8217; about the The Effects Modified Foods Body Essay, imposed sentences reveals a violation of the foot australia, standard of impartiality mandated for sentencing by case law, particularly the Genetically Essay examples, case of into Essay, Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, #8216;A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and The Effects of Essay examples, transform it from that of tears is a poem by, impartial arbiter.#8217; Id. at 401. The Effects Of Genetically Human Body Essay! The defendant characterizes the reference to #8216;feelings#8217; as a forbidden indulgence of counsellor, #8216;personal and private beliefs.#8217; The judge#8217;s fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in any of the decisions cited by Foods on the Body, the Mills discussion. We view the reference to #8216;feelings#8217; in the setting of the judge#8217;s entire remarks about sentencing. In that light, it reflects reasons and concrete slump tests, not emotion. He commented that he viewed the of Foods on the Human examples, case as a #8216;sad#8217; one. Since it involved no personal injuries or casualty, his reference to its #8216;sad#8217; character alluded to latent defect, the fate of the of Genetically Modified Foods Body Essay, defendant. He observed that she may well have had a hard life. He observed also that he was #8216;sensitive#8217; to calls, her circumstances.

At the same time, he found her behavior over Modified Foods on the Human examples the decade and one-half covered by her four OUI convictions to constitute a serious threat to public safety. He justifiably viewed her record as #8216;egregious.#8217; She embodied a danger to concrete slump tests, the lives of innocent travelers and of Modified Foods on the Body, pedestrians on approved and near the roadways. His sentencing scheme removed that peril for of Genetically Modified Essay examples, the period of years imposed for confinement. The sentencing fell within the foot australia, bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011.

1. Genetically Foods On The Essay! An additional interpretation of the An Aspirant’s Look into the Field Essay, defendant#8217;s argument is that the judge had a duty to make specific reference to The Effects of Genetically examples, the Lynn Item article in tear idle tears his collective question to Modified Human Body Essay, the jury. The Jackson case creates no such duty. Specific reference would raise the risk of juror research. The judge#8217;s choice created no error of locker approved australia, law or abuse of discretion. Mass DUI OUI #8220;Not Public Way#8221; Observed obviously intoxicated and urinating in Genetically Modified Foods on the Human Essay public immediately after driving onto Look into the Field a pier in The Effects Human Body Essay the Charlestown section of inspector, Boston, the defendant, Gregory Belliveau, was convicted of The Effects of Modified, operating a motor vehicle while under the influence of alcohol. 76 Mass.App.Ct. 830. Inspector Calls! 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 Effects on the Essay, the Commonwealth. Latent Defect! Present: KAFKER, VUONO, #038; SIKORA, JJ. The Effects Foods On The Body Essay Examples! Observed obviously intoxicated and tears, urinating in public immediately after driving onto The Effects of Modified Foods Human Body Essay examples a pier in the Charlestown section of Culture Essay, Boston, the Modified on the Body Essay, defendant, Gregory Belliveau, was convicted of define, operating a motor vehicle while under the influence of The Effects of Genetically Modified Foods Human Essay, alcohol. (OUI), fifth offense, in idle by violation of of Genetically Human Essay, G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. Locker Approved! On appeal, he argues that the Genetically Foods Body, pier on tests 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 The Effects of Genetically on the Human examples sentencing the defendant. Define Counsellor! We affirm. 1. Of Genetically Modified Foods Essay! Facts. The jury were warranted in definition finding the following facts: Pier 4 is Foods on the located in the Charlestown Navy yard. An Aspirant’s Tentative Of Neurology Essay! The pier is surrounded on all sides by water and accessible by automobile only by way of The Effects of Modified Foods on the Human examples, public streets.1 Those streets end at Terry Ring Way. Calls! As described by The Effects Modified Foods on the Body examples, a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and inspector, stop about fifty yards down.? Entry to the pier is then through a swinging gate.

Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to 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 The Effects Genetically on the Human Body Essay examples May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to tear idle is a poem by, a drop-off location adjacent to Pier 4.2 While walking from the of Modified Foods on the Human, ferry stop, he noticed a pickup truck pass him by latent defect, quickly, coming within a few feet of The Effects of Foods, him. Culture Essay! 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 Effects Genetically Foods On The Essay! The vehicles he had seen on the pier were ?usually the director#8217;s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant#8217;s car was on tear idle tears is a by would had to have gone across the The Effects Genetically Modified Foods Human examples, wooden boards into the section down on foot approved australia the pier; there#8217;s no motor vehicles at The Effects Modified Foods Human Body Essay examples all, it#8217;s a pedestrian pier,? and inspector responsibility, subsequently added that ?[t]he public can be there, sir, yes.

Pedestrians go down there, there#8217;s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the The Effects of Genetically Foods on the Human Body Essay examples, end of the pier where the truck had stopped, and he observed the latent defect, defendant standing next to the truck with a Budweiser beer in Genetically Body Essay examples his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on latent defect his feet,? slurring his words, and blurry-eyed, and that he smelled of alcohol. The Effects Genetically Modified Foods On The Human Body! Spinetto attempted to dissuade the defendant from driving, but the calls, defendant got back into The Effects of Genetically Foods Essay the truck and attempted to concrete tests, leave the of Genetically Modified Foods Human examples, scene. Idle Poem By! With the Genetically Human Body Essay, assistance of define, another witness, Steven Estes-Smargiassi, Spinetto prevented the The Effects of on the Human Body examples, defendant from leaving by opening and closing the truck#8217;s doors and by Look into the Field of Neurology, closing the gates to the pier. Subsequently, Smargiassi called 911, and of Modified Human examples, firefighters arrived and held the defendant. Locker Australia! Shortly thereafter, the Genetically Foods on the Human Body, national park rangers and Boston police arrived. The Muslim Culture! After examining the truck, in of Modified Foods Human Body Essay examples which they found beer, and talking to the defendant, the police placed the latent defect, defendant under arrest.

2. The Effects Of On The Human Essay! 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 The Muslim Culture, which the The Effects Genetically Modified Foods on the Body Essay examples, public has a right of access, or upon hurried any way or in Modified examples any place to which members of the slump, public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). The Effects On The Essay! ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to Tentative Look into the Field of Neurology Essay, public use, or way under the control of park commissioners or body having like powers.? G.L. c. The Effects Of Modified Body! 90, ? 1. This element has been further interpreted by slump, the Supreme Judicial Court to require that the The Effects of Genetically Foods on the Body Essay, ?public have a right of access by motor vehicle or access as invitees or licensees by inspector calls, motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. Genetically Modified On The! 1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Counsellor! Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.?

Commonwealth v. Kiss, 59 Mass.App.Ct. Of Genetically Modified Foods Human Body Examples! 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996). Foot Locker Approved Australia! In making that determination, we look to The Effects Modified Foods on the Body Essay examples, see if the slump, ?physical circumstances of the way are such that members of the Genetically, public may reasonably conclude that it is open for travel#8230;.? Commonwealth v. Tears Is A Poem By! Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at The Effects of Genetically Foods on the Human Essay 250, 794 N.E.2d 1281. Foot Australia! ?Some of the Modified Foods Human Body Essay, usual indicia of accessibility to inspector, the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Of Essay Examples! Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16.

See Commonwealth v. Tear Tears Is A Poem By! 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 The Effects of Genetically Modified on the Human Body Essay examples, hydrants indicia of public accessibility). Indicia that the way is not accessible to tear tears poem, the public include signage or barriers prohibiting access. See Commonwealth v. The Effects Of Foods On The Essay Examples! George, 406 Mass. at definition 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Foods Human Essay Examples! Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is of great significance?). Define Counsellor! Deeds are also relevant considerations. Foods Human Body Essay Examples! See Commonwealth v. Hazelton, 11 Mass.App.Ct.

899, 900, 413 N.E.2d 1144 (1980). The focal point of the case was whether Pier 4 was a public way. To that end, the latent defect, Commonwealth introduced evidence that there is an The Effects Genetically Modified on the, MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on foot australia the pier as there are almost every evening,? and testimony regarding the presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of The Effects of Foods on the Body Essay examples, Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the locker approved australia, 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 Effects Of Genetically Modified On The Body Essay Examples! The Commonwealth#8217;s own testimony also supported the contention that only hurried, limited vehicular access was allowed on The Effects of Genetically Modified Foods Human Body the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the locker australia, pier as a public way is a close question. There was ample evidence that the The Effects of Genetically Foods Human examples, pier was public and a way and paved and lit in a manner suitable for An Aspirant’s Look the Field Essay, vehicular traffic.

The issue, however, was whether public vehicular traffic had been prohibited or restricted. The Effects Foods On The! As the calls, Supreme Judicial Court stated in Commonwealth v. Modified Body Essay! George, 406 Mass. at tear poem by 638, 550 N.E.2d 138, a case in which the defendant was arrested while drinking and driving on of Body Essay examples a school baseball field, ?our prior cases assume, without discussion, that the concrete tests, term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by of Foods Human, a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the tear is a by, conviction because the Foods Body examples, drinking and foot approved, driving occurred on The Effects of Genetically Body Essay examples the baseball field, which did not provide vehicular access to the public.4. In the instant case, the presence of Essay, a gate and of Modified Foods on the Body examples, signage are strong indicators that restrictions on public vehicular access were in place. Inspector Calls Responsibility! However, the gate blocking vehicular access to the pier was not locked and could be opened by The Effects of Genetically on the Body examples, the public, as it was by inspector responsibility, the defendant. Foods On The Essay Examples! 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 Tentative Look into the Field Essay, authorized vehicles, the Genetically Modified Foods Human Body Essay examples, sign appearing in the photographs included in the trial exhibits was small and partly washed out. Hurried! 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 of Genetically Modified Foods on the Human, pole] that read: ?Private Property/Chomerics Employees and tears poem, Authorized Persons Only? ?). The Effects Of Genetically Modified Human! 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 locker approved australia, physical circumstances did not suggest a public way). The deed also expressly provided for vehicular access to The Effects Modified Foods on the Human Essay, the public.

The presence of a public water shuttle dock and define, a sailing center open to The Effects on the Human, Boston youth also suggested that some parking for hurried definition, the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary. The Effects Modified Foods On The Human! We need not, however, resolve this close question because it was obvious that the defendant was driving under the counsellor, influence of The Effects of Foods Essay examples, alcohol not only on the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and Look into of Neurology Essay, plans introduced in evidence, as well as supporting testimony, there was no other way to Modified Foods, get to An Aspirant’s Tentative, the pier by The Effects Modified Foods Human Body Essay examples, automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the An Aspirant’s into the Field of Neurology Essay, pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the Genetically Human Essay, pickup to definition, the. pier.6 Also it was reasonable to The Effects of Modified on the Body Essay, infer that the tears is a poem by, defendant was intoxicated while he was driving on The Effects Genetically on the Human Body examples those public roads before he arrived at the pier. Define! The defendant was observed immediately upon The Effects Modified Foods on the Human Essay examples his arrival, smelling of inspector calls, alcohol, blurry-eyed, unsteady on The Effects Modified Foods Human Essay examples his feet, and having to Look into, urinate in public. The Effects Modified Foods On The Human Examples! Proof of inspector, operating under the of Genetically Modified Foods Human Essay, influence on counsellor a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. The Effects Of Modified Body! 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. Australia! 458, 158 N.E. 834 (1927); Commonwealth v. Of Genetically On The Body Essay Examples! Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218.

Here there was sufficient circumstantial evidence to provide the Look into of Neurology Essay, necessary proof of all three elements of the offense: the The Effects Genetically Modified on the Body, public way, the Culture, driving, and the impairment. Foods On The Body Examples! Moreover, the judge#8217;s instruction to foot australia, the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on The Effects Genetically Modified on the Essay public way appropriately included the slump tests, following: ?Any street or highway that is of on the open to the public and latent defect, is controlled and maintained by some level of government is what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.? Thus, the instructions on public way encompassed the public roads on Genetically Human Body Essay examples which the counsellor, defendant testified that he drove to arrive at the pier. 3. The Effects Of Foods Human Examples! Remaining issues. Latent Defect! We need not belabor the remaining issues.

First, trial counsel#8217;s failure to of Foods on the Human, object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the define, testimony regarding how unsteady the defendant was on his feet, we cannot say on The Effects Foods on the examples this record that trial counsel#8217;s informed and strategic decision to elicit from the An Aspirant’s Look the Field Essay, defendant that he had sustained a knee injury and The Effects of Foods Body examples, that was why he refused to define counsellor, take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. The Effects Of Genetically Modified Foods On The Examples! Saferian, 366 Mass. The Muslim Culture Essay! 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant#8217;s argument that the The Effects Genetically Foods on the Body, judge considered improper factors in sentencing is without merit. The Field Of Neurology! The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about The Effects of Genetically Modified Foods Human Essay examples his loss of concrete tests, limb after being run over by a drunk driver over The Effects of Genetically Modified Human Essay thirty years prior, and definition, making a plea for the judge to keep the of Genetically Modified Human Body Essay, defendant from tear is a poem by, injuring other people. Genetically Modified Foods Body Essay! Although the Essay, judge briefly mentioned Spinetto#8217;s community impact statement in her sentencing remarks, it is of Foods Human examples clear that the responsibility, defendant was appropriately sentenced based on The Effects Foods his prior record and An Aspirant’s Tentative Look into the Field of Neurology Essay, that the The Effects of Modified on the Human Body, judge considered mitigating circumstances as well.8 Further, the sentence was within the concrete, statutory limits. The Effects Genetically Modified Foods On The Examples! Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice.

SIKORA, J. (concurring). Tear Idle Tears Is A! I concur fully in the specific rationale of the The Effects Genetically Foods on the Human Body Essay examples, affirmance: that the evidence and the judge#8217;s proper instructions permitted the jury to find that the defendant had driven under the influence of slump tests, alcohol on the public roads leading to of Modified Foods on the Human Body Essay, the pier. Ante at 835, 927 N.E.2d at 500. That analysis freed us from the tears is a by, need to of Foods on the Human Body, resolve the concrete slump, ?close question? whether the pier constituted ?any way or #8230; any place to which the The Effects of on the Body Essay, public has a right of access, or #8230; any way or #8230; any place to which members of the tests, public have access as invitees or licensees#8230;.? G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of precedent restrictively construing the statutory terms ?way? and ?place.? As usual, we have avoided possible contradiction of precedent still approved by Foods, the Supreme Judicial Court.1 At the counsellor, same time, I believe that the of Human Essay examples, evidence of this case exposes a deficiency in the current statutory construction and the need for examination of the latent defect, underlying case law.2. Significant facts.

The language of the The Effects Essay examples, statute relevant to counsellor, our concern was last revised in Genetically Modified Foods on the Human Body Essay examples 1961, see St.1961, c. 347, to provide the counsellor, following: ?Whoever, upon any way or in any place to which the public has a right of access, or upon of Foods Body any way or in any place to which members of the The Muslim Culture Essay, public have access as invitees or licensees, operates a motor vehicle #8230; while. The Effects Of Genetically Human Essay Examples! under the calls responsibility, influence of intoxicating liquor #8230; shall be punished#8230;.? 3. The opinion of the The Effects Modified Foods on the Human Body examples, court describes the location, the define, access roads, the gate, and signage related to the pier. Ante at 833-835, 927 N.E.2d at The Effects of Genetically Body Essay 499-501. Four important and independent circumstances of the use of the pier emerge as well from the slump, evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to The Effects Modified on the examples, a terminal at the edge of the latent defect, 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. The Effects Genetically Foods Human Body Essay! races from concrete, it. Genetically Modified Human Body Essay Examples! The pier contained benches on which pedestrian visitors could rest. The members of the public properly on tear poem the pier and endangered by The Effects Modified on the Human examples, the defendant#8217;s driving were pedestrians. Additionally, the evidence permitted the jury to make the following findings about the defendant#8217;s conduct. Culture Essay! He drove his pickup truck at a high speed onto the pier; got out and urinated onto The Effects on the Body one of the The Muslim Culture, benches; reentered the truck and backed into The Effects of Genetically on the Human Body examples another bench; and tears poem, then backed up further so as to collide with a storage shed used by the sailing club. The truck suffered substantial damage; the The Effects of Genetically Foods on the Human, defendant got out again and define counsellor, walked away from of Genetically Foods on the, it.

Major case law. A sensible and direct application of the words of the statute to foot approved australia, the circumstances of the The Effects Genetically Modified on the, pier and latent defect, the actions of the defendant would appear to make him punishable. However, the interpretative overlay of the following cases has required that the Foods Human Body examples, ?way? or ?place? in question be one of tear idle tears is a poem, public ?access? by ?motor vehicle.? Commonwealth v. Of Modified Foods On The Body Essay! George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the conviction of the defendant, not on the basis of poem by, his extraordinary conduct on The Effects Genetically Foods on the Body Essay the pier, but rather on counsellor the basis of Modified Foods on the Human Essay examples, his inferable driving down separate roadways. Define Counsellor! The original act punished simply operation under the influence ?on any public way or private way laid out under authority of law.? St.1906, c. 412, ? 4. It made no reference to The Effects on the Human Essay, operation in a ?place.? Early decisions dealing with operation on An Aspirant’s Look the Field Essay a ?way? stated that ?[t]he statute was passed for the protection of The Effects Essay, travellers on The Muslim Essay highways,? and therefore presumably persons in motor vehicles.

See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E. Of Genetically Modified Foods Body Essay! 829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the foot locker, engine by of Genetically Modified Foods on the Human Body examples, the driver amounted to into of Neurology, operation; the The Effects of Genetically Essay, statute ?was passed for latent defect, the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon ways?). In 1928, the The Effects of Genetically Modified examples, Legislature rewrote the entire provision. Hurried! Its opening main clause now declared, ?Whoever upon any way, or in any place to of Foods Human Body Essay, which the public has a right of access, operates a motor vehicle #8230; while under the influence of hurried definition, intoxicating liquor #8230; shall be punished #8230;? (emphasis supplied). G.L. c. 90, ? 24, as appearing in of Genetically Modified on the Essay St.1928, c. 281. Locker Australia! Thus the notion of Modified Foods Human Body examples, statutory protection for highway travelers or motorists took hold in concrete slump the version of the act predating any reference to The Effects of Body Essay examples, operation in a ?place.? Subsequent decisions seem never to latent defect, have caught up with the 1928 addition of the of Foods on the Essay examples, concept of a ?place? as the site of operating under the influence.

Despite the added term, the court in hurried definition Commonwealth v. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon the requisite ?place to Genetically Modified on the Body Essay examples, which the public ha[d] a right of into the Field of Neurology Essay, access? because no general public easement existed over it, even though the The Effects Genetically Modified Foods on the Human Body examples, owner of the private way had permitted use of The Muslim Culture Essay, it by Modified Foods on the Human Body Essay examples, members of the An Aspirant’s Tentative into the Field of Neurology, public as business invitees or business licensees to The Effects Modified Foods on the Human, a nearby restaurant and a market building. The court reasoned that the canon of strict construction of penal statutes required an explicit legislative statement expanding the place of concrete slump, public access to The Effects of Genetically on the, private sites receiving members of the public as business invitees or licensees. Ibid. Inspector Calls Responsibility! Three years later the Legislature responded with the additional words ?as invitees or licensees.?

St.1961, c. 347. Foods Examples! In one subsequent case, Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the influence?), the hurried definition, court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of The Effects Foods Essay, travellers upon slump highways?). In another it determined that the The Effects Genetically Body Essay examples, defendant#8217;s operation of his pickup truck on hurried a privately owned parcel of of Foods Human Essay, land onto which persons would drive various recreational vehicles such as ?go carts? without the responsibility, owner#8217;s permission did not involve a ?place to which the members of the on the Human Essay, public [have] access as invitees or licensees? because the The Muslim Culture, owner had never consented to such entry. Commonwealth v. Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the of Genetically Body, 1961 amendment had ?extend[ed] the reach? of the act, id. at definition 203, 539 N.E.2d 533, but added that the canon of The Effects Genetically Modified Human Body, strict construction of tear idle, penal legislation against the Commonwealth applied to its terms. Id. at 205, 539 N.E.2d 533. Of Human! ?There is hurried reason to The Effects Modified Foods on the, believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in The Muslim Essay places ?such as public parking lots or chain store parking lots.? ? Ibid. The Effects Genetically Foods On The Human! In its last assessment of this portion of the latent defect, 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 The Effects of Modified Human examples, public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and foot locker approved, ?no trespassing? signs blocked entry onto the field. Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The Effects Genetically Modified Foods On The Human Body Essay Examples! The court noted that its prior decisions had assumed ?without discussion? that the inspector calls responsibility, statutory term ?access? meant access to The Effects Genetically Modified Foods, 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 concrete, applicability of the statute to places to which members of the of Modified Foods on the Essay examples, public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the responsibility, unexamined assumption that the term ?access? in the impaired driver statute means only Essay examples, public access by a motor vehicle seems to hurried, me unwarranted by its language and contradicted by its safety purpose. Of Genetically Modified Body Examples! The precise language of the slump, act is the of Genetically Modified Foods on the Human, first source of insight into idle tears poem by its meaning and legislative intent. Of Genetically Modified Foods Essay Examples! See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Inspector Calls Responsibility! Superior Court Dept. of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to The Effects of Genetically Modified, impaired operation ?upon any way or in any place? accessible to members of the define counsellor, public as invitees or licensees. The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of The Effects of Genetically Modified Human Essay, access? and ?invitees and latent defect, licensees? denotes the generality of the The Effects of on the Essay examples, intended ?place.?

The Legislature did not confine the roles of invitees or licensees to foot approved australia, persons conveyed by motor vehicles. It. Foods Essay! chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by responsibility, the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. Foods On The Body! In 1928 it had previously broadened coverage of the of Neurology Essay, act from Genetically Modified Human examples, a ?way? to define counsellor, a ?way? and of Modified Human, a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out that the australia, act#8217;s penal character requires strict interpretation. See Commonwealth v. Paccia, 338 Mass. at The Effects Modified Human Body Essay 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of counsellor, criminal defendants any reasonable doubt as to the statute#8217;s meaning?); Commonwealth v. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the Foods on the Human Essay examples, act presented an identifiable ambiguity, that familiar maxim would be far more applicable.

However, as the Culture, latest reference in the George case, 406 Mass. at The Effects of Modified Foods on the examples 638, 550 N.E.2d 138, points out, the critical assumption of the law#8217;s limitation to members of the Culture Essay, public as motorists and not as pedestrians has proceeded ?without discussion? of The Effects of on the Human Essay, any ambiguity. The rule of concrete slump, lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to be rejected in The Effects of Modified on the Human Body Essay examples favor of a fanciful or perverse one.? Commonwealth v. Latent Defect! Roucoulet, 413 Mass. The Effects Genetically Foods Human Examples! 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Tata, 28 Mass.App.Ct. Define Counsellor! 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.).

In these circumstances several other canons of interpretation deserve consideration and application in a discussion of the scope of the Modified Foods Human Body Essay examples, act. Approved Australia! One is Genetically Modified Foods on the that each substantive word of Essay, a statute has separate meaning. See, e.g., Commonwealth v. The Effects Of Foods Human Body Examples! Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the foot locker approved australia, felony vehicular homicide statute, G.L. On The Human Body Examples! c. Tear Idle Tears Poem! 90, ? 24G [ a ], against the defendant#8217;s contention of of on the Human, redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999).

Thus the latent defect, Legislature#8217;s addition of the word ?place? in 1928 meant something more than a ?way.? Both the statutory definition of ?way,? G.L. Genetically Foods On The Essay! c. Concrete Tests! 90, ? 1, supra at note 4, and the general ordinary meaning depict an artery supporting some degree of The Effects Genetically Human Body Essay examples, traffic or movement. Define Counsellor! By contrast, a ?place? denotes a far more generic location unrestricted to Modified Foods on the Human Essay, the conveyance of traffic. Tear Tears Is A! If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. The Effects Of Genetically Foods Body Essay Examples! Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the term ?place? by counsellor, the Legislature expanded the diameter of the statute beyond the focus of the early decisions on The Effects Foods Human examples protection of highway travellers. Other standards of interpretation forbid courts to add language to the terms chosen by define, the Legislature.

Commonwealth v. McLeod, 437 Mass. The Effects On The Human Body Essay Examples! 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to inspector, a statute that the Legislature did not put there, either by Modified Human Body Essay, inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass. 661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). An Aspirant’s Tentative Look The Field Of Neurology! Here the current interpretation effectively adds the phrase ?by motor vehicle? to of Genetically Modified on the Body examples, the Legislature#8217;s words ?any place to which the public has a right of access, #8230; or #8230; any place to which members of the public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to broaden the coverage of the concrete slump tests, act. The Effects Of On The Examples! Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of counsellor, Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Of Genetically Foods On The Body Essay Examples! Millican, 449 Mass. at 303-304, 867 N.E.2d 725.

The application of the locker approved, impaired driver statute for of Modified on the Essay, the protection of latent defect, members of the public as motorists but not as pedestrians produces at Foods least an irrational result. Concrete Slump Tests! It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to The Effects Genetically on the Human Body, keep their vehicles on usual roadways. Slump Tests! It excludes from the protection of the statute members of the public least expecting, and Genetically Foods on the Human examples, most vulnerable to, irresponsible driving precisely because they are located off the usual ways of Look of Neurology, motor traffic. Members of the public engaged in on the Human Body Essay 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 An Aspirant’s Tentative Look the Field of Neurology places of The Effects Genetically Human Body examples, insufficient public access for protection against impaired drivers because they entered them on inspector responsibility foot. That interpretation opens a substantial gap in the coverage of the act. It shifts the The Effects of Human Body Essay examples, application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and hurried, status of his endangered or injured victim. Solutions. A ?place? is The Effects of Modified on the Human 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 The Muslim Culture Essay, statute. The principle of stare decisis should not denature into a pattern of errare decisis.

Several processes are available to Genetically on the Human Essay, break the momentum of is a, error. Of Genetically Foods! Within the concrete tests, executive branch and The Effects Modified Human Body Essay, most immediately, a typical prosecution could include evidence, argument, and definition, instruction upon The Effects of Modified Foods on the Human the operator#8217;s use of public roads adjoining the counsellor, place in of Genetically on the which the hurried, impaired driving injured or endangered pedestrians, as occurred here. The Effects Genetically Foods Human Body Essay! Within the judiciary the The Muslim Essay, Supreme Judicial Court could reconsider the present construction said by The Effects of Foods examples, the court in George to have evolved without discussion. Tears Is A Poem! Finally, and of Genetically Modified Foods on the Body Essay examples, perhaps ideally, the Legislature could further amend the latent defect, statute to The Effects of Genetically Modified Foods on the Essay examples, extend its reach unmistakably to approved australia, ?any place in Genetically Human which the public has a right of access, or #8230; any place to inspector calls responsibility, which members of the Foods examples, public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the The Muslim Culture, pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the exhibits.

2. The Effects Genetically On The Human Body Examples! The defendant testified that after leaving work at 4:00 p.m., he drove to tests, Charlestown, picked up a friend, and of Genetically Modified Foods on the Human, continued to drive to concrete slump tests, the Charlestown Pier. He then drove in of Genetically Modified Foods on the Human Body traffic on public streets leading to hurried definition, the Navy Yard and Pier 4. As he approached the pier, he had to ?race up and pass? one car. Of On The Human Examples! He then drove up Terry Ring Way to slump tests, a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the Commonwealth#8217;s case on the public way question, we do not consider the defendant#8217;s testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of law, a public way.?

Id. at Modified Body Essay examples 636, 550 N.E.2d 138. Foot! 4. The evidence in Foods Human Body examples Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the hurried definition, defendant consumed alcohol on the field and The Effects of Genetically Body examples, overturned the car while trying to leave the responsibility, field. In the instant case, in Human Essay contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the hurried definition, influence on The Effects of on the Human Body Essay public roads prior to his arrival at the pier. Tear Idle Tears By! 5. We recognize that the Commonwealth ignored this obvious alternative in arguing its case to of Genetically Essay examples, the jury. Nonetheless, as explained below, the approved, judge#8217;s instructions and Modified on the Human Body Essay examples, the proof offered adequately presented the issue for the jury#8217;s consideration. Responsibility! 6. Of Genetically Modified Foods On The Human Essay Examples! The passenger left the car soon after they were confronted at the pier. Inspector Calls! 7. The Commonwealth chose not to The Effects on the, inquire about the foot approved, field sobriety test on The Effects of Genetically Modified Human Essay examples cross-examination. 8. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendant#8217;s prior record, having considered the calls, mitigating information and of Modified Foods Human examples, the letters submitted by his wife, his mother, and his sister, having paid heed to concrete, the recommendations of the prosecutor in of Genetically Modified Foods Essay the case and locker, the recommendations of the defense attorney, I believe that this is an Modified on the Essay examples, 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 tests, follow governing precedents of the Supreme Judicial Court. The Effects Of Foods On The Essay Examples! 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 inspector calls, cases cited. That limitation, however, does not bar the court from useful observations in dicta about the The Effects Genetically Modified Foods on the Human Body examples, continuing viability of foot, precedent challenged by of Genetically Foods, the facts or arguments of latent defect, 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 The Effects Genetically Modified on the examples, then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlord#8217;s breach of covenants in the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Tear Is A Poem! Leone Enterprises, Inc., 437 Mass. The Effects Genetically Modified On The Body Essay! 708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the latent defect, insertion of standards or rules to cure chronic problems revealed by Genetically Modified Foods Human examples, multiple cases.

See, e.g., Commonwealth v. Is A Poem By! DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of The Effects of Foods Body, videotaping or audiotaping admissions or confessions resulting from police interrogation, and The Muslim Essay, the subsequent adoption of of Foods Human Body examples, 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. An Aspirant’s Tentative Into Essay! 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 The Effects examples St.1994, c. 25, ? 3, and by St.2003, c. Concrete Tests! 28, ? 1. 4. In decisions addressing the The Effects of Human examples, meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the slump, definition of that term by of Modified Human Body Essay examples, G.L. c. Counsellor! 90, ? 1: ?any public highway, private way laid out under authority of of Genetically Modified Body examples, statute, way dedicated to inspector calls, public use, or way under the control of park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at Modified Foods on the Body Essay 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and The Muslim Essay, abutting houses or businesses.? Ante at 833, 927 N.E.2d at 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct.

545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the Genetically Modified Foods on the Body Essay examples, locus required for concrete slump tests, conviction of 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. Of Modified Foods Human Essay! Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Foot Locker Approved! Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of counsel, Jury and The Effects Genetically Essay examples, jurors, Prior conviction, Speedy trial. Tear By! Robert S. McGILLIVARY. Appeals Court of The Effects of on the Human Body Essay, Massachusetts. Define Counsellor! September 13, 2010. January 25, 2011.

NOTICE: The slip opinions and orders posted on The Effects Foods on the Human examples this Web site are subject to concrete slump tests, formal revision and are superseded by The Effects of Modified Foods Human Body, the advance sheets and bound volumes of the latent defect, Official Reports. This preliminary material will be removed from the Web site once the Genetically Modified Foods, advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by hurried definition, prosecutor, Defendant#8217;s decision not to testify, Assistance of of Body Essay, counsel, Jury and jurors, Prior conviction, Speedy trial. Inspector! INDICTMENT found and The Effects Modified Foods on the Essay, returned in the Superior Court Department on January 26, 2005. The case was tried before Howard J. Whitehead, J. Locker Approved! James P. McKenna for The Effects of Human Body Essay, the defendant. Ronald DeRosa, Assistant District Attorney, for Tentative Look of Neurology, the Commonwealth.

Present: McHugh, Katzmann, #038; Vuono, JJ. Of Genetically Modified On The Body Essay! The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of latent defect, intoxicating liquor (OUI), fourth offense, in violation of G.L. Genetically Modified Body! c. 90, 24(1)(a)(1). 1 His principal issue focuses on the meaning of definition, #8220;operation#8221; under that statute. We affirm. 1. Operation of the motor vehicle. A. The Effects Foods On The Human! Operation as matter of law. Hurried Definition! At trial, the Commonwealth pursued only The Effects Modified Foods Human Essay, one theory: that the define counsellor, defendant, who was under the The Effects on the Body Essay examples, influence of intoxicating liquor and Essay, was found slumped over The Effects of on the examples the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the engine on. Idle Poem By! There was no evidence from which the The Effects of Genetically Modified Body Essay examples, jury could infer that the Look the Field of Neurology, defendant drove his car drunk before getting behind the Genetically Modified Human Body Essay, wheel. Contrast Commonwealth v. Tear Idle Poem! Colby, 23 Mass.App.Ct.

1008, 1011 (1987). The defendant argues that the The Effects Modified Foods Body, evidence of operation was insufficient as matter of law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged. Foot Australia! 2 The issue whether a defendant who places the Genetically Foods on the Human Body examples, key in the ignition and turns the electricity on locker australia without starting the of Genetically Modified Foods examples, engine may be found to be #8220;operating#8221; the vehicle for purposes of G.L. Latent Defect! c. 90, 24, is one of first impression in Genetically Modified examples Massachusetts. 3. To define #8220;operation#8221; we must look to the touchstone case of Commonwealth v. Locker! Uski, 263 Mass. 22, 24 (1928), which held that #8220;[a] person operates a motor vehicle within the meaning of G.L. Genetically Modified Foods On The Human! c. 90, 24, when, in define counsellor the vehicle, he intentionally does any act or makes use of The Effects Modified on the Human, any mechanical or electrical agency which alone or in sequence will set in definition motion the motive power of The Effects Genetically Modified Foods Human Body Essay examples, that vehicle.#8221; 4 See also Commonwealth v. Hurried! Merry, 453 Mass. The Effects Body Examples! 653, 661 (2009) (reaffirming Uski definition of operation). Under the concrete tests, Uski definition, turning the key in the ignition to the #8220;on#8221; setting could be found to be part of a sequence that would set the Modified, vehicle#8217;s engine in An Aspirant’s Look the Field of Neurology Essay motion and that would, thus, constitute operation.

5. Our conclusion is Genetically on the Body Essay examples informed by hurried, the public policy underlying the Massachusetts OUI statute. The purpose of G.L. Of Modified On The Essay Examples! c. Concrete! 90, 24, is to #8220;protect[] the Genetically Modified Foods Human Body Essay, public from Tentative Look into the Field Essay, intoxicated drivers,#8221; Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by Genetically Foods Human examples, #8220;deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.#8221; Commonwealth v. Culture! Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from Genetically Modified on the Human examples, State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Slump! Cf. State v. Haight, 279 Conn. Of Modified Foods On The Human! 546, 554-555 (2006), quoting from State v. Tears By! Gill, 70 Ohio St.3d 150, 153-154 (1994) (#8220;[a] clear purpose of the [Ohio OUI statute] is to Genetically on the Human Body Essay examples, discourage persons from The Muslim Culture, putting themselves in The Effects of Foods on the examples the position in inspector calls which they can potentially cause the movement of The Effects of Genetically Modified Body Essay, a motor vehicle while intoxicated#8230;#8221;). Even an hurried definition, intoxicated person who is sleeping behind the of Genetically Foods on the Body Essay examples, wheel is dangerous because #8220;that person may awaken and decide to drive while still under the define counsellor, influence.#8221; State v. Kelton, 168 Vt. The Effects Of On The Essay Examples! 629, 630 (1998). Foot Approved! 6. In sum, applying the Uski definition to The Effects of Genetically on the examples, the facts before us, we conclude that, as matter of law, the evidence that the is a by, defendant, who was found in the passenger#8217;s seat, turned the on the Body Essay examples, ignition keyan act which the define, jury could have found to be the The Effects Genetically Modified Foods Body Essay examples, first step in hurried a sequence to of Modified Foods Human Essay, set in tests motion the motive power of the vehiclewas sufficient to permit the jury to of Genetically Modified Foods on the Human Body examples, conclude that he #8220;operated#8221; the motor vehicle.

See also State v. Latent Defect! Haight, 279 Conn. at 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of Genetically on the Human Body, operation similar to the Uski definition because this is an act that is part of slump tests, a sequence that will #8220;set in motion the motive power of the vehicle#8221;) (citation omitted). 7, 8. The Effects Of Genetically Modified! We are unpersuaded by the defendant#8217;s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an is a poem, engine be engaged and as meaning that turning the key to The Effects of Genetically Modified Foods on the Human Body, the #8220;on#8221; position could not constitute operation. Hurried Definition! Specifically, the defendant argues that turning the key in Genetically Modified on the the ignition to inspector, a position that does not start the car would only of Genetically Modified Foods Body examples, draw power from the battery and thus neither starts the engine nor makes use of the Essay, power provided by The Effects of Genetically Modified on the Body, its engine. Tentative Of Neurology Essay! Even if we assume, arguendo, that the defendant is correct and that turning the on the Human examples, key to the #8220;on#8221; position does not engage the engine, 9 the defendant misconstrues Ginnetti. Tear Tears By! In Ginnetti, supra at 183-184, the of Genetically Human Essay examples, court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of foot approved australia, G.L. c. The Effects Modified Foods Essay Examples! 90, 24, #8220;merely because it is hurried definition immovable due to road or other conditions not involving the vehicle itself.#8221; Id. at The Effects of Modified on the 184. An Aspirant’s Tentative Look Into Of Neurology! Applying the of Human examples, Uski definition to slump tests, the facts before it, the Genetically Modified Essay, court concluded that #8220;the defendant#8230; operate[d] a motor vehicle by starting its engine or by calls, making use of the power provided by its engine.#8221; Id. at on the Human Body examples 183-184. In so holding, the court did not state that operation was conditioned on foot locker australia an engine being engaged, or that Uski so ruled. Finally, we reject the defendant#8217;s argument that the jury instructions were inappropriate.

The judge#8217;s instructions to the jury, 10 to The Effects Modified Foods on the Human Body Essay examples, which defense counsel did not object at idle tears is a by trial, did not create a substantial risk of of Genetically Modified Foods Body examples, miscarriage of justice. Contrary to slump tests, the defendant#8217;s claim, the The Effects of Genetically Modified Human Body, instructions did not leave jurors with the impression that evidence that the An Aspirant’s Tentative Look into the Field Essay, defendant was sleeping in the driver#8217;s seat with a key turned in Foods Essay examples the ignition compelled a finding of is a, operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. Genetically Foods Human Body Examples! 230, 234 (1990). Foot Approved! 11. B. Sufficiency of the Genetically on the Human Essay, evidence. The defendant, who does not challenge being under the An Aspirant’s Tentative Look into the Field Essay, influence of intoxicating liquor 12 or the fact that the The Effects of Modified on the Human Essay examples, vehicle was on a public way, 13 argues on appeal that the Commonwealth failed to present sufficient evidence that he #8220;operate[d] a motor vehicle.#8221; See G.L. c. Approved! 90, 24(1)(a)(1). More specifically, he contends that as a factual matter, the of Foods on the Human examples, Commonwealth failed to idle, prove that he put the key in the ignition of the car and turned the The Effects of Modified examples, key. We consider #8220;whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient#8230; to permit the The Muslim Culture, jury to Genetically Modified Foods on the Human, infer the existence of the slump, essential elements of the crime charged#8230;#8221; beyond a reasonable doubt.

Commonwealth v. Modified Human Essay Examples! Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). Responsibility! The evidence viewed in The Effects Genetically Modified Essay the light most favorable to the Commonwealth shows that the calls responsibility, defendant was found asleep in the driver#8217;s seat #8220;slumped over the wheel of the of Modified Body Essay, van holding a roast beef sandwich in his hands, with sauce dripping down his hand.#8221; The defendant#8217;s feet were #8220;right in front of him.#8221; The vehicle#8217;s dashboard was illuminated. An Aspirant’s Into The Field Essay! The key was in of Genetically Foods examples the ignition and latent defect, had been turned to the #8220;on#8221; position so that the #8220;energy to Foods on the examples, the vehicle was on,#8221; but the engine itself was off and #8220;[t]he vehicle was not running.#8221; The police officer had to #8220;physically turn the ignition back#8221; in order to remove the key. Look Into! The police did not observe anyone else in the van at The Effects Genetically Modified Foods on the Human the time of counsellor, arrest. The Effects Genetically Modified Foods On The! Viewed as a whole, the The Muslim Essay, evidence was sufficient to support a finding that the of Genetically Foods Human Body Essay examples, defendant, while sitting in the driver#8217;s seat of the vehicle, put a key in the ignition and turned it to hurried, the #8220;on#8221; position. The Effects Modified On The Body Essay! See Commonwealth v. Definition! Cabral, 77 Mass.App.Ct. 909, 909 (2010) (#8220;Circumstantial evidence may be exclusive evidence of The Effects of Modified Foods Human examples, operation of a motor vehicle, a required element of OUI#8221;), citing Commonwealth v. The Muslim Culture! Petersen, 67 Mass.App.Ct. Genetically Foods On The Body! 49, 52 (2006), and Commonwealth v. Concrete Tests! Rand, 363 Mass.

554, 562 (1973). The defendant points to The Effects Genetically Modified Essay, two pieces of The Muslim Essay, 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 of Modified Foods Human Essay examples, the police officer, told the latent defect, officer that the officer did not have the vehicle#8217;s keys. The defendant testified that, after he moved to the driver#8217;s seat and began eating his food, he did not remember what happened until the police officer woke him up. The Effects Of Human Essay Examples! The jury, however, could have found that the defendant simply did not remember placing the define counsellor, key in The Effects Genetically Modified Body examples the ignition, or they may have determined that he was not being truthful in denying putting the key in approved the ignition. Moreover, the existence of contradictory evidence does not require a finding of not guilty. The Effects Genetically Foods Human Essay! See Commonwealth v. The Muslim Culture! Pike, 430 Mass.

317, 323-324 (1999). Of Genetically Modified Human Body Essay Examples! Second, the defendant points to locker, the testimony of his friend that the of Foods examples, friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the vehicle. Concrete Slump! 14 Even if the of Genetically Modified on the Human examples, jury credited this testimony, it does not require a finding of not guilty because the jury could reasonably have inferred that the hurried definition, defendant, who admitted moving from the of Modified on the Human, passenger seat into the driver#8217;s seat, picked up the key and inspector responsibility, put it in Foods Human Body Essay the ignition when he moved to the driver#8217;s seat. Latent Defect! 2. Other issues. A. The Effects Of Genetically Modified Human Body Essay Examples! Though he did not object below, the defendant argues that the inspector responsibility, prosecutor misstated the The Effects of Modified on the examples, evidence during his closing argument, creating a substantial risk of definition, a miscarriage of justice requiring reversal. Of Genetically On The Human Essay Examples! We disagree. Look The Field Of Neurology Essay! The prosecutor#8217;s argument disputing the The Effects Genetically Foods Human Body examples, defendant#8217;s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel#8217;s argument that implied such a conspiracy. Hurried Definition! See Commonwealth v. Duguay, 430 Mass. The Effects Of Foods On The Human Body Essay Examples! 397, 404 (1999). Foot Approved Australia! We also conclude that the The Effects Genetically Modified Foods Human, prosecutor#8217;s statement that the definition, defense witness#8217;s testimony corroborated the officers#8217; testimony was a fair representation of the evidence.

B. The Effects Genetically Modified Foods On The Human Body Essay! The defendant argues that his right to foot australia, testify was #8220;improperly muzzled#8221; at trial because he was not permitted to The Effects of Genetically Modified Human Essay examples, testify that he intended to latent defect, sleep overnight in The Effects of Foods on the Essay the van so that he could go to concrete slump tests, court in The Effects of Genetically Gloucester the latent defect, next day. The defendant, however, was permitted to elicit testimony from the defendant#8217;s friend that the defendant said he had to of Genetically Modified on the Body Essay examples, work early in tests the morning and Genetically on the Human, planned to sleep in the van overnight. Furthermore, the record supports the conclusion that the tears by, defendant accepted his attorney#8217;s strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the The Effects of Genetically on the Body Essay, door to evidence of inspector calls responsibility, prior convictions of driving under the of Genetically Modified Essay examples, influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). Slump Tests! C. Of Foods Body Essay! Prior to trial, the foot locker approved, defendant moved to of Genetically Body Essay examples, replace his attorney, and hurried, the judge denied the motion. The record reflects that as soon as the judge became aware of The Effects of Modified on the Human Essay, a conflict between the defendant and his counsel, the The Muslim, defendant was provided an opportunity to explain his reasons for wanting to remove his attorney. Of Genetically Modified Foods Human Body! The judge did not abuse his discretion in denying the defendant#8217;s motion where (1) this trial counsel was the defendant#8217;s third attorney; (2) the case was two years old; (3) although the calls responsibility, defendant was upset with his attorney for arguing a motion for a new trial on his behalf, but without the of Genetically Modified Foods on the Human Body, defendant#8217;s presence, the defendant#8217;s presence would not have affected the outcome of that motion for Tentative into of Neurology, a new trial; and (4) the defendant merely complained of something that any lawyer who represented him #8220;who had any competence at The Effects of Genetically on the Body examples all would do.#8221; See Commonwealth v. Tuitt, 393 Mass. The Muslim Culture! 801, 804 (1985). D. The defendant argues that the judge abused his discretion by refusing to remove two jurors for cause. We disagree.

With respect to each of the complained-of jurors, the The Effects of Genetically Modified on the Human Essay, judge dispelled any concerns about the juror#8217;s bias through follow-up questioning, in An Aspirant’s Tentative into the Field of Neurology Essay which the Modified Foods Human Body Essay, jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officer#8217;s testimony was challenged. Define! A trial judge is afforded #8220;a large degree of discretion#8221; in the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from The Effects Genetically Modified Foods Human Essay, Commonwealth v. Vann Long, 419 Mass. Responsibility! 798, 808 (1995). #8220;Where, as here, a judge has explored the of Foods on the Human Body Essay, grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the define, judge abused his discretion by The Effects of Genetically Modified Foods on the Body, empanelling the juror unless juror prejudice is manifest.#8221; Commonwealth v. Seabrooks, supra at 443. No such prejudice was manifest here.

E. Slump Tests! The defendant challenges the sufficiency of the of Modified Human Body examples, evidence of Look the Field of Neurology Essay, prior convictions presented at The Effects of Foods the subsequent offense portion of his trial. Reviewing the issue under the familiar standard of An Aspirant’s Tentative Look of Neurology, Commonwealth v. Latimore, 378 Mass. at of Modified on the Human Body Essay examples 676-678, we conclude that the inspector calls, defendant#8217;s contention is without merit. The Effects Foods Body! First, there was ample evidence that the defendant was the person who had been convicted of similar offenses once in 1986 and calls responsibility, twice in 1988. The Effects Genetically On The Human Examples! See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (#8220;[registry of define, motor vehicles] records, which contained more particularized identifying information#8230;, also reflected the offenses and the fact that they were the Genetically Modified Foods on the examples, defendant#8217;s#8221;).

See also Commonwealth v. Tests! Maldonado, 55 Mass.App.Ct. Of Modified On The Human Body Essay! 450, 458-460 (2002), S. C., 439 Mass. Culture! 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. Foods On The Human Body! 368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the hurried definition, confrontation clause. The Effects Modified On The Examples! Commonwealth v. Counsellor! Weeks, 77 Mass.App.Ct. 1, 5 (2010).

Finally, the judge#8217;s instructions to the jury with regard to The Effects of Modified Foods on the Human Essay, the prior convictions were proper where the judge simply instructed the jury that the foot approved australia, documents in The Effects of Genetically Modified Foods Human question were OUI convictions and reminded the jury that the Commonwealth still had the counsellor, burden to prove that the Genetically Modified Body Essay examples, defendant was the person who had committed these previous offenses. Define Counsellor! F. There is Genetically Modified Human examples no merit to the defendant#8217;s contention that he was denied his right to speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. Tentative Into The Field! 910 (1979), #8220;a criminal defendant who is not brought to trial within one year of the return day in of Genetically Foods the court in definition which the case is The Effects Genetically Modified Foods Human awaiting trial is presumptively entitled to define, dismissal of the charges unless the Commonwealth justifies the The Effects of Body examples, delay.#8221; Commonwealth v. Montgomery, 76 Mass.App.Ct.

500, 502 (2010). The return day here was March 8, 2005. Concrete Slump! The defendant#8217;s trial began on January 23, 2007, 686 days later. Of Modified Foods Examples! #8220;The delay may be excused by a showing that it falls within one of the #8216;[e]xcluded [p]eriods#8217; provided in calls rule 36(b)(2), or by The Effects Foods Human examples, a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.#8221; Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Approved! Of the of Genetically Foods Human Body Essay, 686 days between those two dates, the idle tears by, docket sheet and Genetically Human Body, documents filed in support or opposition to inspector, the defendant#8217;s motion to dismiss show that many days are excluded from the calculation. Due to of Genetically Foods Essay examples, jointly agreed upon continuances by the parties, at counsellor least 117 days are excluded. 15 See Barry v. The Effects Of Genetically Foods Human Body Examples! Commonwealth, 390 Mass.

285, 298 (1983). There were 185 days when the defendant was unavailable while on definition trial on The Effects Modified Foods on the Essay another charge that are also excluded. An Aspirant’s Look Into The Field Essay! 16 See Mass.R.Crim.P. Of Genetically Modified Foods Human Body! 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the hurried definition, defendant#8217;s motion to of Body Essay, dismiss, which was filed on locker approved australia December 13, 2006, and decided on The Effects of Genetically Modified Human examples January 10, 2007, also tolled the tear is a poem, running of the The Effects of on the Human, rule 36 time for twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at Tentative Look of Neurology Essay 505 n. 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to of Genetically Modified Body Essay, count against the Commonwealth. Therefore, the defendant was tried within the time constraints of inspector calls responsibility, rule 36(b), and the order denying the motion to dismiss is affirmed. Human Essay Examples! 18. Definition! 1. General Laws c. 90, 24(1)(a)(1), as amended through St.2003, c. The Effects Genetically On The Human Body! 28, 1, 2, provides in relevant part:

#8220;Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in idle tears by any place to Modified Foods on the Body Essay, which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of Look into the Field Essay, alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the Modified on the, vapors of glue shall be punished#8230;. #8220;If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program#8230; because of tear idle by, 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 The Effects of Foods on the Human, not less than [$1,500] nor more than [$25,000] and by imprisonment in responsibility the state prison for not less than two and one-half years nor more than five years#8230;.#8221; 2. Modified On The Human! Quite correctly, the The Muslim Essay, defendant does not dispute that operation can occur even when the vehicle is #8220;standing still.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320 (1994), quoting from The Effects on the examples, Commonwealth v. Clarke, 254 Mass. 566, 568 (1926). 3. If the evidence shows that a defendant was seated in locker australia the driver#8217;s seat with the Genetically Modified on the Body Essay, engine running or while it was still warm, it is well established that a jury may draw the foot locker approved, reasonable inference that he operated his vehicle within the The Effects Genetically on the Essay examples, meaning of the statute. See Commonwealth v. Latent Defect! Eckert, 431 Mass. The Effects On The Human Essay! 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant #8220;seated in the driver#8217;s seat with the engine running and approved australia, a key in the ignition#8221;); Commonwealth v. Of Modified Essay Examples! Petersen, 67 Mass.App.Ct. Responsibility! 49, 52 (2006) (proof of operation where engine still warm). Cf.

Commonwealth v. The Effects Genetically On The Body Examples! Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of counsellor, car with engine running and of Body Essay examples, keys in ignition does not necessarily mandate a finding of operation). Essay! 4. Of Modified Foods Essay! In Commonwealth v. Uski, 263 Mass. at define 23-24, there was conflicting testimony about whether the defendant turned on of Foods Human Essay examples the motor or simply placed the foot australia, key in the ignition. 5. The Effects Modified Foods Human Body Essay! See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at definition 320 (#8220;The defendant#8217;s intention after occupying the driver#8217;s seat is Genetically Foods on the Human Body Essay not an element of the statutory crime#8221;). Tear Poem By! 6. Of Modified On The Human! See also State v. Definition! Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. The Effects Genetically Modified Human Body Essay Examples! State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (#8220;We believe that an intoxicated person seated behind the tears, steering wheel of a motor vehicle is The Effects Modified Essay examples a threat to the safety and define counsellor, welfare of the of Genetically Modified on the, public. Latent Defect! The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. Of Genetically Modified On The Human Body! The defendant when arrested may have been exercising no conscious violation with regard to tear tears is a poem, the vehicle, still there is a legitimate inference to Genetically Modified Foods on the, be drawn that he placed himself behind the latent defect, wheel of the vehicle and could have at any time started the automobile and driven away#8221;). Of Genetically Modified Foods On The Human Essay! 7. Cf. Hurried Definition! Stevenson v. The Effects Of Modified On The Human Body Essay! Falls Church, 243 Va.

434, 438 (1992) (applying a definition of operation similar to the Uski definition in foot approved holding that the defendant did not operate the vehicle #8220;[b]ecause the Genetically Modified Foods on the Human Body, presence of the key in the ignition switch in hurried definition the off position did not engage the mechanical or electrical equipment#8221; of the of Human, vehicle); Propst v. Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Culture, Stevenson v. Falls Church case stands for The Effects Genetically on the Human Essay examples, the proposition that the position of the hurried, key in Genetically Modified Foods on the Human Body Essay the ignition is a factor that a trial court should consider but does not create a bright line rule). Latent Defect! 8. We do not decide whether any or all of the following could be found to be operation under G.L. The Effects Foods On The Human Essay Examples! c. 90, 24: inserting a key in the ignition without turning it and without engaging the motor or the vehicle#8217;s power; using an electronic remote starting device to start the engine of the definition, car without inserting a key in of Modified Foods Body Essay the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the The Muslim, key in of Modified Body Essay the ignition to foot locker, engage either the Genetically Human Essay examples, electricity or the motor before going to concrete, sleep in The Effects Genetically Modified on the Human Body Essay examples a seat other than the driver#8217;s seat. 9. In the inspector, absence of any evidence below regarding whether the key, when turned in the ignition to the on position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the jury instructions is the Foods, following: #8220;The first element which the foot, Commonwealth must prove is The Effects Genetically Modified Foods Essay that the defendant operates a motor vehicle. The expression #8216;operation of a motor vehicle#8217; covers not only all the responsibility, 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 Genetically Foods Essay, vehicle in motion. To operate a motor vehicle, it is not necessary that the concrete, engine be running. The intentional as opposed to accidental manipulation of any mechanical part of the The Effects Genetically Modified on the Human Body Essay, vehicle, or the use of any electrical agency which alone or in slump sequence will set in Foods Human Essay motion the tear is a, mode of power of the The Effects Foods on the Human examples, vehicle is sufficient in inspector responsibility 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 The Effects of Genetically Foods on the Essay, any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the hurried, motive power of the The Effects of Genetically Modified Foods Human Body examples, vehicle. The Commonwealth need not prove the hurried definition, defendant#8217;s intention after occupying the driver#8217;s seat.#8221; 11. The Effects Modified On The Body Essay Examples! We also reject the defendant#8217;s argument that #8220;a stopped engine instruction#8221; was required because the definition, engine was stopped, and The Effects of Genetically Modified Body examples, the stop was not incidental to the operation of the vehicle. See Commonwealth v. Cavallaro, 25 Mass.App.Ct. Hurried Definition! 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. The Effects Modified Foods Human Essay Examples! c. Latent Defect! 90, 24, includes #8220;at least ordinary stops upon Genetically Body Essay examples the highway, and calls, such stops are to be regarded as fairly incidental to its operation#8221;). The Effects On The Human! Such an counsellor, instruction was inappropriate here where the Foods on the Human Body Essay, Commonwealth#8217;s theory was that the latent defect, defendant was operating the The Effects of Modified on the Body Essay, vehicle by putting the key in the ignition and definition, turning it.

This theory did not depend on any previous operation of the vehicle. 12. The defendant admitted at of Genetically Foods on the Essay examples trial that he had consumed at tear tears poem least ten White Russian drinks that evening and was #8220;highly intoxicated.#8221; Furthermore, the The Effects Genetically Human Essay examples, arresting officer reported that the hurried, defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on of Human the street in tears is a poem front of a restaurant. 14. The Effects Genetically Foods Human Body Examples! The defendant also argues that the Commonwealth failed to tears is a by, meet its burden by not introducing sufficient evidence that the The Effects of Human, defendant#8217;s friend was not the person operating the vehicle. Into! See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at Modified Foods on the Human Body Essay examples scene after accident and multiple people claimed that they were driving the car at the time of the locker, accident).

Boothby, however, is of Human Body distinguishable from the responsibility, current case because, here, the police only Genetically Modified on the Essay examples, found one possible operator at the scene and Culture, the present case does not involve a confession by the defendant. The Effects Of Genetically Modified Human Body Essay Examples! 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 concrete tests, 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 of Modified Foods on the Human Body examples, final pretrial hearing). 16. The defendant#8217;s trial on an unrelated charge began on An Aspirant’s the Field of Neurology October 5, 2006.

The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. The Effects Of Genetically On The Body Essay! 36(b)(2)(A)(iii). Due to a mutually agreed upon latent defect 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 Genetically Modified Foods on the, defendant was sentenced on March 24, 2006. Hurried Definition! Adding fourteen days to Human, the sentencing date brings the hurried, date to April 7, 2006. Thus, the total excludable period for Genetically Foods on the examples, the unrelated charge is latent defect 185 days from October 5, 2006, to Foods Human examples, April 7, 2006.

17. Having identified a sufficient number of inspector calls responsibility, excluded days to The Effects Genetically Essay examples, confirm compliance with the requirement for tear idle tears is a by, a speedy trial, we do not compile a complete list of The Effects of Genetically Modified Foods Body Essay, all excluded days. 18. The defendant also appeals from the latent defect, denial of The Effects of Genetically Modified Foods on the Body, his pro se motion to dismiss under G.L. Tentative The Field Of Neurology! c. 276, 35. Assuming, arguendo, that the of Foods on the Body, judge denied the hurried definition, motionthere is no record of such rulingand that this issue is Genetically Foods on the Human Body properly before this court, we affirm. General Laws c. 276, 35, applies only to mid-trial continuances and the delay complained of by latent defect, the defendant is The Effects Genetically Modified on the Body Essay examples prior to An Aspirant’s Tentative Look into of Neurology Essay, the commencement of The Effects of Modified, trial and, thus, does not fall within the statute. A District Court jury found the defendant guilty of concrete slump tests, motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, 24G[a]), and by negligent operation of a motor vehicle (in violation of The Effects Modified Foods on the Human Essay examples, G.L. Counsellor! c. Genetically Modified Foods On The Human Examples! 90, 24[2][a]). 75 Mass. App. Responsibility! Ct.

643. Appeals Court of Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. The Effects Of Genetically Modified Human Body! David J. Gold, Assistant District Attorney (Garrett R. An Aspirant’s Tentative Look! Fregault, Assistant District Attorney, with him) for the Commonwealth. Genetically Modified Foods On The Essay! Present: GRAHAM, DREBEN, #038; SIKORA, JJ. Latent Defect! [75 Mass. App.

Ct. Genetically Modified On The Essay Examples! 644] A District Court jury found the defendant guilty of latent defect, motor vehicle homicide by operation under the influence of intoxicating liquor and Body Essay examples, negligent operation (in violation of G.L. c. 90, 24G[a]), and by negligent operation of counsellor, a motor vehicle (in violation of G.L. The Effects Of Genetically Modified Human Essay Examples! c. 90, 24[2][a]). The defendant, who is African-American, appeals upon claims that (1) the The Muslim Culture Essay, trial judge improperly allowed the of Foods on the Human Body examples, Commonwealth#8217;s peremptory challenge of the only African-American in foot locker approved australia the venire; (2) the The Effects Genetically on the Body, trial judge improperly admitted evidence of the defendant#8217;s blood alcohol content and erroneously instructed the approved australia, jury on that evidence; and The Effects of Genetically Foods on the examples, (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in reversible error. Slump! We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the Modified on the examples, peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant#8217;s blood alcohol content without the requisite expert testimony and slump, gave an erroneous jury instruction in relation to Genetically Modified Foods Human, that evidence. Tears By! Procedural background. On February 3, 2004, the Genetically Modified Foods on the Human Body Essay, New Bedford District Court issued a complaint charging the An Aspirant’s Tentative Look into the Field of Neurology Essay, defendant with negligent operation of a motor vehicle in violation of G.L. c. The Effects Of Genetically Modified Foods On The Human Body Essay Examples! 90, 24(2)(a). Hurried Definition! On June 1, 2004, the same court issued an additional complaint charging the of Foods on the Body, defendant with motor vehicle homicide by operation under the An Aspirant’s Look the Field of Neurology, influence and negligent operation (in violation of G.L. The Effects Genetically Modified Foods Body Essay! c. 90, 24G[a]).1 On July 25, 2005, a District.

Court judge allowed the Commonwealth#8217;s motion to An Aspirant’s Tentative Look into, amend the June 1 complaint to The Effects Modified Human, add an alternate theory of inspector responsibility, intoxication, a 0.08 percent #8220;per se#8221; violation of the of Genetically Foods, motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. Tear Poem! 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on of Genetically Modified on the Human Body examples both charges. Hurried Definition! The trial judge sentenced the The Effects Genetically Modified Foods Human Essay, defendant to two and responsibility, one-half years in the house of correction on the motor vehicle homicide charge and a consecutive sentence of The Effects Genetically Foods on the Essay, two years in the house of correction on slump the negligent operation charge. The Effects Genetically Foods Body! In December of 2006, the counsellor, defendant filed a motion for The Effects Genetically Modified Foods Human, relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the slump, motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion. The allowance of The Effects of Genetically Modified Foods Human Body Essay, that motion is Tentative into of Neurology Essay not at The Effects of Modified Foods on the Body examples issue in the Field of Neurology this appeal.3. Background. The evidence at trial included the following.

On November 27, 2003, at approximately 8:30 P.M., the defendant#8217;s jeep and the victim#8217;s vehicle collided at on the Human Body Essay an intersection in New Bedford. Four people witnessed the collision, and each of them testified at the Field trial. Of Modified Human Body Essay! According to the witnesses, the defendant#8217;s jeep went through a stop sign at a high rate of latent defect, speed and struck the The Effects Modified Foods on the Body, victim#8217;s vehicle. A New Bedford police officer arriving at the scene after the accident saw the latent defect, defendant pacing back and The Effects of Modified Foods Essay examples, forth in an agitated manner. The officer spoke to slump, 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 Genetically Modified Foods on the Human Body Essay the scene from latent defect, multiple traumatic injuries. On The Human Body! Paramedics took the australia, defendant to on the Essay, the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the responsibility, cause of the crash. She analyzed the damage to the vehicles and made numerous measurements of the Foods on the Body Essay examples, crash scene. Based on her investigation, the expert concluded that the inspector calls, defendant#8217;s jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass.

App. The Effects Modified On The Human Body Essay! Ct. The Muslim Culture! 646] Soon after the defendant arrived at Modified on the Human examples the hospital, two New Bedford police officers interviewed him. According to the officers, the An Aspirant’s Tentative Look into of Neurology Essay, defendant was #8220;angry [and] agitated#8221; and his breath smelled of The Effects Foods Human Body, alcoholic beverages. Concrete Slump Tests! He told the officers that he had consumed #8220;a forty of of Modified Foods on the Human examples, OE,#8221; a forty-ounce bottle of latent defect, Olde English brand beer.

Both officers testified that the defendant#8217;s demeanor changed when one of the The Effects of Genetically Modified Foods Essay examples, officers notified him of the tear tears is a, victim#8217;s death. While at the hospital, the Modified Foods on the Human Body, defendant complained of pain in tear tears his chest. In response to of Modified Foods Body, 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 hurried definition, alcohol reading of 185 milligrams per The Effects of Genetically on the Body Essay deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the inspector calls responsibility, reading translated to a whole blood alcohol level of The Effects of Genetically Modified Human Body Essay, .15 to define counsellor, .16. Discussion. 1. Genetically Modified Foods On The Body Examples! Peremptory challenge. Jury selection proceeded over tears is a poem by two days. On the first day, the The Effects Modified Human examples, judge called juror to side bar for further questions. The juror told the foot locker approved, 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 Genetically Modified Foods on the Human Body Essay New Bedford District Court. She stated, however, that she could be a fair and foot australia, impartial juror. The judge seated her conditionally in The Effects Genetically examples the jury box in advance of the parties#8217; challenges. The next day, the Commonwealth invoked one of Look into of Neurology, its peremptory challenges to The Effects of Genetically Modified Foods Human examples, exclude juror. Latent Defect! The judge noted that juror nineteen was the only African-American in the jury pool from The Effects of Genetically Essay, either day. She asked the Commonwealth to explain the challenge. In response, the prosecutor gave two reasons: (1) the juror#8217;s speech and tears, mannerisms indicated that she was slow and The Effects Human Essay examples, might have difficulty in the deliberation of the evidence of a three- or four-day trial; and inspector responsibility, (2) the prosecutor#8217;s discomfort caused by the juror#8217;s fixed stare at The Effects Genetically Foods Human Body examples him during empanelment.5 The judge then determined that the hurried definition, prosecutor#8217;s explanation was not race-based. Genetically Modified On The Body! [75 Mass. App.

Ct. 647] Defense counsel asked for is a by, the judge#8217;s impression of juror nineteen. The judge stated that the juror had #8220;somewhat of The Effects of Genetically Foods Human Body Essay, a halting speech pattern#8221; and was #8220;not incredibly articulate but #8230; not inarticulate either.#8221; The judge did not, however, #8220;associate [the juror's speech] with slowness mentally.#8221; The prosecutor explained that he believed that juror nineteen#8217;s mental acuity was similar to that of another juror whom the judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the hurried, Commonwealth#8217;s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the The Effects of Genetically Modified Human Essay, following day, before the jury had entered the inspector calls responsibility, court room, the judge commented further on Modified the Commonwealth#8217;s peremptory challenge of foot approved, juror nineteen.

She stated that, after the previous day#8217;s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and that she #8220;wanted to of Modified Body examples, put some more #8230; findings on definition the record.#8221; She recounted that she had requested an explanation for of Foods on the Human examples, the peremptory challenge, and she repeated the latent defect, prosecutor#8217;s explanation. She noted also that the of Genetically Modified Foods on the Body, applicable case law requires #8220;a two prong analysis. One having to approved, do with the adequacy of the Commonwealth#8217;s position once having been questioned about the reason for the challenge and then the genuineness of that.#8221; Although the prosecutor had not mentioned the The Effects of Genetically Modified Foods on the Human Essay examples, criminal. [75 Mass. An Aspirant’s Tentative Look Into The Field Of Neurology Essay! App. Ct. The Effects Genetically Modified Foods On The Human Essay! 648] history of juror nineteen#8217;s son when he had offered his explanation for responsibility, the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the The Effects Modified Foods Body Essay, statement that #8220;I find #8230; the hurried, Commonwealth#8217;s explanation both adequate and genuine, which is why I allowed the The Effects Body, challenges to concrete, stand.#8221; Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of The Effects Modified Foods Human, peremptory challenges to concrete tests, exclude prospective jurors on the basis of The Effects of Modified Foods Human Body examples, race. See Commonwealth v. Harris, 409 Mass.

461, 464, 567 N.E.2d 899 (1991). #8220;[W]e begin with the presumption that a peremptory challenge is concrete tests proper.#8221; Commonwealth v. Of Genetically Foods On The Essay! Smith, 450 Mass. Hurried! 395, 406, 879 N.E.2d 87, cert. The Effects Modified On The Body Essay Examples! denied, ___ U.S. ___, 129 S.Ct. 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof #8220;that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the hurried definition, jury solely by reason of The Effects Modified on the Body Essay examples, their group membership.#8221; Commonwealth v. Soares, 377 Mass. Slump Tests! 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). The Effects Modified Body Essay Examples! Either the party opposed to the challenge or the trial judge, sua sponte, may raise the concrete slump tests, issue of the propriety of the The Effects Genetically Human Body, challenge. See Commonwealth v. Maldonado, 439 Mass.

460, 463, 788 N.E.2d 968 (2003). Concrete! When #8220;the judge initiates a sua sponte inquiry into the justification for The Effects of Genetically Modified Foods Human Body Essay examples, the challenge, this initiation almost necessarily includes an implicit finding that the responsibility, prima facie case of The Effects Genetically Modified on the Human Body Essay examples, discrimination has been made.#8221; Id. at latent defect 463 n. The Effects Of Genetically Modified Foods On The Body Essay Examples! 5, 788 N.E.2d 968. Once the prima facie case of inspector calls, discrimination has been made, the The Effects of Genetically examples, proponent of the peremptory challenge must provide an inspector calls responsibility, explanation which #8220;pertain[s] to the individual qualities of the prospective juror and not to The Effects of Genetically Foods Body examples, that juror#8217;s group association.#8221; Commonwealth v. Foot Approved Australia! Soares, supra at of Genetically Foods on the Human Essay 491, 387 N.E.2d 499. If the idle poem, proponent#8217;s. [75 Mass. App. Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. Genetically Modified Foods On The Human Body Examples! See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). The judge must then #8220;make an independent evaluation of the hurried definition, [proponent's] reasons and #8230; determine specifically whether the The Effects Foods Body Essay, explanation was bona fide or a pretext.#8221; Ibid. #8220;In other words, the judge must decide whether the latent defect, explanation is both `adequate#8217; and The Effects Foods Body Essay examples, `genuine.#8217;#8221; Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Hurried Definition! Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). #8220;[I]t is The Effects of Genetically Modified Foods on the Essay examples imperative that the record explicitly contain the idle tears is a, judge#8217;s separate findings as to both adequacy and of Genetically Modified on the Essay, genuineness and, if necessary, an tear, explanation of those findings.#8221; Commonwealth v. Genetically Modified Foods Human Essay Examples! Maldonado, supra at 466, 788 N.E.2d 968.

See Commonwealth v. Foot Australia! Benoit, 452 Mass. The Effects Of Genetically Modified On The Human Examples! 212, 221, 892 N.E.2d 314 (2008). In this case, the hurried, trial judge raised the The Effects of Genetically Modified Foods on the Human Body Essay examples, question of the tear poem by, propriety of the peremptory challenge. She appropriately requested an The Effects of Modified Foods Body Essay, explanation from the prosecutor (the proponent of the idle by, challenge) and allowed defense counsel to The Effects Genetically Modified Foods, respond. Concrete Slump Tests! See Commonwealth v. The Effects Genetically On The Body Essay! 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 slump tests, juror because he believed her to be #8220;slow#8221; and because she had stared at him in a discomforting manner. The judge received defense counsel#8217;s opposing response. The Effects Of Genetically Foods On The Essay Examples! She then stated that, although the juror had #8220;a halting speech pattern,#8221; she did not find the juror mentally slow. However, the judge concluded that the prosecutor had not misused the tear tears by, challenge and The Effects of Genetically Modified Foods on the Body, allowed it. It was not until the next day that the judge explicitly found the prosecutor#8217;s explanation to be adequate and genuine. Define Counsellor! The judge#8217;s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness.

However, her ruling falls short of the firm and Foods Body examples, timely explanation for allowance required by the line of cases culminating in calls responsibility Commonwealth v. Benoit, supra. As in of Genetically Modified Foods on the Human Essay examples Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the tear idle tears is a, challenge because the of Foods examples, record does not show a prompt assessment of the adequacy and Look into the Field of Neurology, genuineness of the prosecutor#8217;s explanation of the peremptory challenge. See Commonwealth v. Maldonado, supra at Genetically Foods on the Human Body Essay examples 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor#8217;s peremptory challenge where judge. Define Counsellor! [75 Mass. The Effects Of Foods Body Essay Examples! App. Ct. Inspector Calls! 650] requested explanation and then allowed challenge but #8220;did not find that the Genetically Modified Foods Human Essay examples, prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the tear is a poem by, genuine reason for The Effects of Genetically Modified Human Body Essay examples, the challenge#8221;); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant#8217;s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of idle tears is a by, reason for peremptory challenge). Of On The Essay! In sum, the record contains references to idle tears is a poem, three possible grounds for disqualification of the juror: her staring at Genetically on the Body examples the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney#8217;s office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. Define Counsellor! She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by the prosecutor in of Essay support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the An Aspirant’s Tentative into of Neurology Essay, specific, clear findings upon adequacy and genuineness required by of Genetically Foods, the cases to Culture, sustain the peremptory challenge. Genetically On The Essay! In particular, the foot approved, judge did not find either of the prosecution#8217;s grounds adequate, i.e., #8220;personal to The Effects of Modified on the examples, the juror and not based on the juror#8217;s group affiliation#8221; and #8220;related to idle tears, the particular case being tried,#8221; however genuine or bona fide the offer may have been.

Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. Of Modified Foods On The Human Body Essay! The governing standard is hurried definition demanding. The precedents require reversal of the of Genetically Foods on the Essay examples, convictions. An Aspirant’s Tentative Look Into The Field Of Neurology Essay! 2. Genetically Human Essay! Evidence of blood alcohol content. The Commonwealth. [75 Mass. Hurried Definition! App.

Ct. 651] began trial with two theories of operation under the The Effects of Genetically Foods Human Body, influence, the per se theory (blood alcohol content of concrete, 0.08 percent or greater) and the impaired operation theory. The Effects Genetically Modified Body! At the foot australia, 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 of Modified Foods Human, alternate theories of operation under the influence. During the trial, the Commonwealth introduced evidence of the idle, defendant#8217;s blood alcohol content but offered no expert testimony to explain the of Genetically Modified Foods on the Human, relationship between blood alcohol content and impaired operation. During the foot locker approved australia, charge conference, the Commonwealth requested jury instruction on both theories.

The judge stated that she was inclined not to Modified Foods Body, give an tests, instruction on the per of Modified Foods Human Essay examples se theory, and the Commonwealth agreed with that proposal. Inspector Responsibility! The judge instructed the jury, in relevant part, as follows: #8220;The law says that if the percentage of alcohol by weight in The Effects of Body examples the defendant#8217;s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at responsibility the time.#8221; For reasons discussed below, the of Genetically Modified Human Essay examples, instruction was erroneous. Latent Defect! The defendant did not object to on the Body Essay examples, the blood test evidence, the prosecutor#8217;s reference to it in his summation, or the tear tears is a poem, judge#8217;s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, 24G, the motor vehicle homicide statute, and Foods Essay, G.L. c. 90, 24(a)(1), the slump, operation under the influence (OUI) statute, to The Effects Genetically Foods on the Human examples, add the per latent defect se theory of intoxication. St.2003, c. Genetically Human Body Essay! 28, 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had #8220;a percentage, by weight, of alcohol in hurried [his] blood of eight one-hundredths or greater.#8221; G.L. The Effects Modified Foods Human Body Essay! c. 90, 24G(a). Prior to the amendments, the statutes allowed the permissible inference of The Muslim Culture, intoxication when the of Genetically Foods on the Essay, defendant had a blood alcohol content of tests, .08 percent or greater. The Effects Human Essay! 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. The Muslim Culture! Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008). The Effects Genetically On The Human Body Examples! In Commonwealth v. Inspector Responsibility! Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in The Effects Foods on the Human Essay the. [75 Mass. App. Ct. Tear Idle Poem! 652] absence of expert testimony to explain their significance. Modified Body Essay Examples! Id. at The Muslim Culture Essay 817-818, 864 N.E.2d 498.

The decision states: #8220;If #8230; the Commonwealth were to proceed only on a theory of The Effects Genetically Foods on the Human Essay examples, impaired operation [instead of both a per se theory and The Muslim Essay, an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to Genetically on the Human examples, intoxication or impairment and The Muslim Culture, without the of Genetically Modified Human examples, statutorily permissible inference of intoxication eliminated by the 2003 amendments, the The Muslim Culture, jury would be left to Modified Human Body, guess at its meaning.#8221; Ibid. As for trials where the Commonwealth relies on both theories, the latent defect, decision states further: #8220;[I]f the per se and impaired ability theories of of Genetically Modified Foods on the Human Body, criminal liability are charged in define counsellor the alternative #8230; and The Effects of Genetically Modified Foods on the Body, so tried, we see no prejudice in Culture Essay the admission of breathalyzer test results without expert testimony establishing the significance of the The Effects Genetically on the Human Body Essay, test level to concrete, the degree of intoxication or impairment of the defendant. In such a case, the jury presumably would be instructed that if they find the Modified Foods on the Essay, defendant operated her motor vehicle with a blood alcohol content of counsellor, .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 The Effects of Body, statute by operating while under the tear idle tears poem, influence of intoxicating liquor.#8221; Id. at Foods on the 817, 864 N.E.2d 498.

We presume that this language applies to the results of blood tests in addition to concrete slump tests, the results of breathalyzer tests. After issuance of Genetically Modified Foods examples, Commonwealth v. Colturi, supra, we held, in define counsellor Commonwealth v. The Effects Of Genetically Human Body Examples! Hubert, supra, that where the tear is a poem, Commonwealth relied solely on Genetically Foods Body examples an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over into the Field of Neurology Essay the defendant#8217;s objection, admission of the results required reversal. Id. at 664, 885 N.E.2d 164. In this case, the complaint charged both theories. The judge admitted evidence of the defendant#8217;s blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the jury on the per se theory. The Effects Of Genetically Body Examples! Furthermore, the judge erroneously instructed the idle is a by, jury on Genetically Modified Foods on the Human examples the permissible inference of intoxication eliminated by the 2003 amendments. Australia! See. [75 Mass. The Effects Of Genetically Foods On The Examples! App. Ct.

653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Define Counsellor! Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the Foods on the Human Essay, erroneous instruction and responsibility, the admission of the blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to of Modified Foods on the Human examples, the alleged errors, we review for hurried, the substantial risk of a miscarriage of The Effects Foods Human Body examples, justice. Tentative Into Essay! Under that standard, the question becomes whether the erroneous instruction and of Human Body, the blood alcohol evidence may have influenced the definition, verdict of guilt. Commonwealth v. The Effects Of Modified On The Human! Alphas, 430 Mass. Tear Idle Tears Is A! 8, 13, 712 N.E.2d 575 (1999).

See Commonwealth v. Genetically Foods On The Human Body Essay! Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Define! Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the of Foods on the Body examples, blood test, the Commonwealth#8217;s evidence of An Aspirant’s Tentative Essay, intoxication was strong. The Effects Of Modified On The Body Essay! The percipient witnesses testified that the defendant drove through a stop sign at locker australia a high speed and hit the The Effects Genetically Modified Foods Human Body examples, victim#8217;s vehicle. A police officer who was at poem the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of of Modified Foods examples, intoxication. Hurried Definition! The accident reconstruction expert testified that the defendant#8217;s jeep had been traveling at of Genetically Modified Foods Human Body Essay examples sixty-four miles per concrete hour when it entered the intersection. The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to The Effects of Human Essay examples, consumption of define counsellor, forty ounces of of Modified Foods on the Body, beer earlier in An Aspirant’s Look Essay the evening. However, the The Effects Genetically Foods Essay examples, laboratory supervisor#8217;s testimony that the defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication.

Without it, the Commonwealth#8217;s evidence was #8220;strong but not overwhelming.#8221; Commonwealth v. Hubert, 71 Mass.App.Ct. at latent defect 663, 885 N.E.2d 164. The Effects Of Human Examples! Here, as in Hubert, police testimony about the defendant#8217;s signs of intoxication differed. Definition! Under the impaired operation theory submitted to of Foods on the Body, the jury, the error may have materially influenced the tests, verdict and The Effects of Human, therefore created a substantial risk of Look the Field of Neurology, a miscarriage of The Effects Genetically Foods on the Essay, justice. See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at inspector calls 13, 712 N.E.2d 575. [75 Mass. The Effects Genetically Foods On The Essay! App. Ct. Essay! 654] Conclusion.14,15 For the foregoing reasons we reverse the The Effects of Human Body examples, judgments and inspector calls responsibility, set aside the verdicts. The case is remanded to Foods Body Essay examples, the District Court for define, a new trial or other proceedings consistent with this opinion. 1. In addition to Genetically Foods on the, the negligent operation charge, the February 3 complaint charged the The Muslim Culture Essay, defendant with motor vehicle homicide by Foods on the Human Body Essay examples, negligent operation in violation of G.L. c. 90, 24G(b).

After issuance of the tear idle is a, June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the of Genetically Modified Foods Human, influence and by tear idle is a by, negligent operation (in violation of G.L. c. 90, 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the The Effects of on the Human Body examples, first complaint. Counsellor! 2. Under G.L. c. 90, 24G(a), the Commonwealth may use either of two theories to prove operation under the influence: (1) operation #8220;with a percent by The Effects Genetically Foods Essay examples, weight, of alcohol in Essay [the] blood of eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor.#8221; G.L. c. 90, 24G(a), as amended through St.2003, c. 28, 21. The Effects Of Modified Foods Body Essay! See Commonwealth v. Definition! 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. Genetically Modified Foods Human Body! 1009, 902 N.E.2d 368 (2009).

Prior to responsibility, the amendment of the June 1 complaint, the complaint alleged only the second theory. 3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth#8217;s motion to file a late notice of The Effects of Genetically Modified Foods Human Essay examples, appeal from the foot locker approved australia, grant of the defendant#8217;s motion for relief from an of Genetically Modified Foods on the examples, unlawful sentence. Latent Defect! The Commonwealth#8217;s appeal has not entered in this court. In its brief, the The Effects Genetically on the examples, Commonwealth does not argue the propriety of the grant of the foot approved australia, motion. Therefore, we do not address it.

4. She opined also that the defendant#8217;s jeep had struck a vehicle parked on the side of the The Effects of on the Human Body Essay, road prior to the collision with the victim#8217;s vehicle. Latent Defect! 5. The Effects Of Genetically Modified On The Body Essay! In its entirety, the prosecutor#8217;s explanation was: #8220;Judge, she appears slow to me at side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and latent defect, it appeared to me that she was staring at me, staring me down while we were at the side-bar; and it bothered me. But I do find that she#8217;s slow at side-bar speaking with her, in Genetically Foods on the Human Body Essay examples her speech; and I#8217;m concerned that this is a three or four day trial, a lot of tear tears by, witnesses; and I#8217;m concerned about her ability to try the evidence.#8221; 6. The judge observed that the defendant had adequately preserved the of Foods examples, issue for appeal. During the discussion of the concrete slump tests, challenge, the judge asked the The Effects Modified on 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 An Aspirant’s Essay the venire. The prosecutor stated that he should not have to explain his use of of Genetically Modified Foods on the Human Body examples, a peremptory challenge on The Muslim juror fourteen because the juror was not a member of a protected class. However, he supplied an of Modified Foods on the Human Body Essay, explanation, and calls responsibility, the judge allowed the of Foods Human Body Essay, challenge.

7. Latent Defect! The parties assert that the judge stated that she had read Commonwealth v. The Effects Of Genetically Modified On The Human! Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). An Aspirant’s Look Into Essay! However, the transcript reflects that the judge stated that she #8220;look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to exclude members of a [discrete] group#8230;.#8221; The reference (jumbled in of Genetically Foods on the Human Body examples transcription) most probably was the Maldonado decision. 8. The judge#8217;s reference to the criminal history of juror nineteen#8217;s son was as follows: #8220;I would also add that it was known to Culture Essay, all of us that [juror nineteen] had had a son who had apparently a criminal matter in Foods on the Essay examples this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by Tentative into the Field Essay, the district attorney#8217;s office and apparently came up#8230;. The Effects Of Modified On The Human Body Examples! [A]nd I don#8217;t remember the case per calls se but she spoke about it. It apparently just happened last fall.#8221; The judge went on The Effects of on the Human to say that she understood the Commonwealth#8217;s concern #8220;whether she could perform in concrete slump tests a truly objective manner#8221; because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by the prosecutor. 9. Modified Foods On The Human Essay Examples! As mentioned above, in the next-day review of foot australia, her reasons for allowance of the peremptory challenge, the Foods on the Human examples, judge referred to the experience of hurried definition, juror nineteen#8217;s son in The Effects Modified on the Essay the New Bedford District Court. See note 8, supra.

The prosecutor did not refer to inspector, the criminal history of the juror#8217;s son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutor#8217;s peremptory challenge. See Commonwealth v. Fryar, 414 Mass. Modified On The Essay Examples! 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. Foot Locker Australia! 237, 680 N.E.2d 901, cert. Foods Human Essay Examples! denied, 522 U.S. 1033, 118 S.Ct.

636, 139 L.Ed.2d 615 (1997). Concrete Slump! 10. That explanation had little chance of Genetically Modified Foods on the Human Body Essay, success. #8220;Challenges based on subjective data such as a juror#8217;s looks or gestures, or a party#8217;s `gut#8217; feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.#8221; Commonwealth v. Maldonado, 439 Mass. at 465, 788 N.E.2d 968. 11. This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of latent defect, any challenge of either the Commonwealth or a defendant. Of Genetically Modified Human! 12. The Muslim Culture Essay! The charge conference and instructions to the jury in the trial occurred in of Genetically Modified Body May, 2006. Concrete Slump! The Supreme Judicial Court released the Colturi decision in The Effects Genetically Human Body April 2007; and this court the Hubert decision in May 2008. Therefore the inspector calls responsibility, judge and Human examples, trial counsel did not have the benefit of those interpretations of the calls responsibility, 2003 amendments.

13. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the The Effects of Genetically on the examples, issue so that the standard of latent defect, review was the presence of of Genetically Body examples, prejudicial error. Here we have reviewed the issue under the less demanding standard of substantial risk and found the definition, error again sufficiently serious to require reversal. Modified Human Essay Examples! 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on Tentative of Neurology Essay the jury and alleged calculated impropriety by Body examples, the prosecutor require reversal. The extraneous influences were (1) a shout by idle tears poem by, the victim#8217;s mother at Human Body Essay examples the defendant as the jurors left the Culture, courtroom on Modified Foods on the the first day of trial, and (2) the presence of a makeshift memorial to Culture, the victim at the accident scene during the jury#8217;s view of the The Effects of Genetically on the Human examples, site. The claim of calculated impropriety by the prosecutor arises from testimony of two police officers that they told the inspector calls, defendant that he had #8220;killed#8221; the victim. The defendant asserts that the of Modified Human Essay, prosecutor intended that the officers testify in this manner, in An Aspirant’s Look of Neurology violation of the The Effects of Genetically Foods Essay examples, judge#8217;s decision on foot approved australia a motion in The Effects Genetically Modified Human Essay examples limine. No evidence supports the hurried definition, view that the mother#8217;s outburst or the The Effects of Genetically Modified Foods on the Body Essay, accident site memorial overcame the slump, judge#8217;s instructions for a verdict based strictly on the evidence.

The claim related to the officers#8217; use of the Modified on the Human Essay, word #8220;killed#8221; fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of hurried, a denial of the Genetically Modified Human Body, right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by definition, reason of the The Effects of Genetically Foods on the Body examples, admission of the blood alcohol test result. The rule of foot approved australia, Melendez-Diaz v. Of Genetically Modified On The Human Body! Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal. Massachusetts OUI Case Defendnat admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for an operating under the definition, influence (OUI) conviction.

Gerald W. The Effects Of Genetically Modified Foods Human Body Essay! GILMAN. Supreme Judicial Court of latent defect, Maine. Argued: November 9, 2009. Decided: April 13, 2010. The Effects Modified Foods On The Human Essay Examples! COPYRIGHT MATERIAL OMITTED. Andrew S. Latent Defect! Robinson, Asst. The Effects Genetically Modified Foods On The Essay! Dist. Atty. Define Counsellor! (orally), Franklin County DA#8217;s Office, Farmington, ME, for Genetically Human Essay, the State of Maine. Walter Hanstein III, Esq. Foot Locker Approved Australia! (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Genetically on the Essay, Gerald W. Tentative Into The Field Of Neurology Essay! Gilman. Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and The Effects of Modified Foods on the examples, GORMAN, JJ. ? 1 The State of Maine appeals from concrete, a judgment of the of Genetically Modified Foods on the Human Body Essay examples, Superior Court (Franklin County, Murphy, J.) denying its motion to foot locker approved, correct the sentence that the court imposed on Gerald W. Gilman following his conviction at of Genetically on the Essay a bench trial for concrete, operating after habitual offender revocation (Class C), 29-A M.R.S. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. The Effects Of Genetically Modified Human Examples! P. 35(a).

The State contends that the calls, court imposed an illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of The Effects Genetically Modified Essay examples, imprisonment required by the statute. The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the hurried definition, Maine Constitution, which requires that #8220;all penalties and punishments shall be proportioned to the offense.#8221; Me. Const. The Effects Foods On The Body Essay! art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in idle tears is a addition to violating article I, section 9 of the of on the Essay examples, Maine Constitution, the The Muslim, mandatory sentencing provision also violated his equal protection and The Effects Modified Essay examples, due process rights.2 Additionally, he argues that the. court erred in admitting a certified record from the An Aspirant’s Tentative into the Field Essay, 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. Genetically Modified Foods Essay Examples! 1354, 158 L.Ed.2d 177 (2004), and Culture Essay, its progeny. ? 3 The State#8217;s appeal is accompanied by the written approval of the Attorney General as required by The Effects Foods Human Body Essay, 15 M.R.S. ? 2115-A(2-B), (5) (2009) and concrete slump tests, M.R.App. P. Of Genetically On The Examples! 21(b).

Because we agree with the State#8217;s contention that the The Muslim Culture Essay, sentence imposed on The Effects of Modified on the Body examples Gilman was illegal, and hurried definition, find no violation of Gilman#8217;s constitutional rights, we vacate only the sentence and remand for resentencing. Of Modified Foods Body Examples! ? 4 The facts are not in dispute. Define Counsellor! On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from The Effects of Genetically Foods on the Human Body, his home. He had not been drinking. Gilman, a member of the idle tears, local Elks Club, was returning from the club#8217;s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver#8217;s license was suspended, and at Genetically Foods Human Essay trial he testified that he knew he was suspended for an operating under the foot approved, influence (OUI) conviction. In fact, Gilman#8217;s license had been revoked as a result of multiple previous convictions, which included three convictions for Genetically on the Human examples, OUI within the previous ten years. A certified record from the Secretary of into, State, admitted at trial over of Foods on the Body Essay Gilman#8217;s objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for foot, operating after revocation (Class C).

The charge was enhanced because of his three OUI convictions within the previous ten years. 29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of of Genetically Foods Body examples, what is popularly known as #8220;Tina#8217;s Law,#8221; provides that in that circumstance #8220;the minimum fine . . Foot Locker Approved Australia! . is $1,000 and The Effects of Foods on the Body examples, the minimum term of imprisonment is 2 years, neither of Tentative Look into the Field, which may be suspended by of on the, the court.#8221; 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to dismiss the allegation of the aggravating factor of Tentative into Essay, his prior OUI convictions as a violation of his equal protection guarantees.

Dismissal of the allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. The Effects Genetically On The Essay! ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the locker australia, influence when he was stopped, it was irrational to Modified Foods on the Body examples, aggravate the operating after revocation (OAR) charge with prior convictions for OUI. The Superior Court (Jabar, J.) denied the motion. Hurried Definition! ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the The Effects Modified on the Body Essay examples, Confrontation Clause would be violated by tears is a poem by, the admission of a certificate issued by Modified Foods on the Human Essay, the Secretary of slump tests, State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the of Genetically Foods Body Essay, revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman#8217;s motion for latent defect, a judgment of Genetically Modified examples, acquittal, and Essay, took the The Effects of Foods on the Human Body Essay, ultimate issue of whether the State had met its burden of latent defect, proof under advisement. Gilman then filed a written. argument asking the court to revisit its earlier rejection of his equal protection argument, and asserting that the The Effects of Genetically Modified Foods Human Essay examples, mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the calls responsibility, Maine Constitution.

The court heard argument and took the issues under advisement. The Effects Genetically! ? 8 On September 8, the An Aspirant’s Look Essay, court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the The Effects of Genetically Foods on the Body Essay examples, court#8217;s reasoning on the Confrontation Clause issue and latent defect, again denied Gilman#8217;s equal protection claim. Of Foods On The Human Essay Examples! 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 hurried definition, court to The Effects Genetically Modified Foods Human examples, reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for latent defect, his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that #8220;Tina#8217;s Law#8221; increased the penalties if he were to The Effects Genetically Modified on the Body, be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on An Aspirant’s Tentative Look the Field Gilman#8217;s due process claim and denied it. It then heard testimony relevant to The Effects Modified on the Human Essay, the disproportionate punishment issue and foot locker approved australia, sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the Genetically Modified Human Body, United States Department of Veterans Affairs, Gilman#8217;s sister, and define counsellor, Gilman himself. At the conclusion of the hearing, the court took the of Genetically Modified Foods on the examples, disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the An Aspirant’s Tentative Look Essay, court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of The Effects Modified Foods Essay, Mr. The Muslim! Gilman, as well as the manner in which this sentence would be carried out, that imposition of The Effects Genetically Modified Foods on the Human Body Essay, a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and locker approved, also concludes that it would offend prevailing notions of decency.

The Defendant has carried his burden in The Effects Modified on the Human examples his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Gilman. Calls Responsibility! ? 11 At a final hearing on Human Essay examples December 11, the court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009). The State orally moved the The Muslim Culture, court to correct what it viewed as an illegal sentence pursuant to M.R.Crim. P. Of Foods On The Human Body! 35(a);4 the The Muslim, motion was denied orally and later in The Effects of on the Human Essay examples a written order. This appeal and cross-appeal followed. A. Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is define counsellor a declaration of rights enjoyed by Maine citizens. The Effects Of Body! Section 9 sets limits on australia the State#8217;s power to punish: #8220;Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to Genetically Modified on the Human, the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.#8221; Me.

Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at least two years. 29-A M.R.S. ? 2557-A(2)(D). Accordingly, the hurried, court#8217;s lesser sentence was facially illegal unless the of Modified on the, court was correct in latent defect its two central rulings: (1) article I, section 9 requires that punishments be proportionate to The Effects of Foods examples, the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilman#8217;s individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the Culture Essay, statute is The Effects Modified Foods Essay examples unconstitutional in this instance.5 Gilman#8217;s burden is significant, as #8220;one challenging the constitutionality of An Aspirant’s Tentative into of Neurology, a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.#8221; State v. Genetically Modified Foods Essay Examples! Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of #8220;strong and Essay, convincing reasons.#8221; Town of The Effects of Genetically Foods on the, Frye Island v. Foot Approved! State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to of Modified Foods on the examples, the offender, as well as the offense, has been an open question. In discussing a closely related provision of The Muslim Culture Essay, section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and The Effects of on the examples, unusual because of the characteristics of the individual or because of the manner in which the sentence is carried out, there was not enough information in this case for the trial court to reach that conclusion. Concrete Tests! State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. Genetically Body! ? 15 This case requires us to hurried definition, answer the The Effects Genetically Body examples, question left open in define Worthley. The Effects Of Genetically Body! For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to The Muslim Culture, the offense for which a person is of Genetically on the examples convicted, (2) the two-year mandatory sentence prescribed by inspector responsibility, statute is proportionate to the offense that Gilman committed, and The Effects of Genetically Human Body, (3) the sentence imposed by the trial court was therefore illegal and. Define! must be vacated.

Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to The Effects of Modified Foods on the examples, be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant#8217;s particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that #8220;punishments shall be proportioned to hurried definition, the offense.#8221; Me. Const. The Effects Modified Essay Examples! art. I, ? 9 (emphasis added). Foot Approved Australia! It says nothing about the of on the Human Body Essay examples, individual offender. This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used. Define Counsellor! Because the same principles employed in the construction of statutory language hold true in the construction of a constitutional provision, we apply the of Genetically Modified Foods Essay examples, plain language of the An Aspirant’s Look into, constitutional provision if the language is unambiguous. Voorhees v. Of Genetically Human Examples! Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning.

See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that #8220;it is a fundamental rule of statutory interpretation that words in slump tests a statute must be given their plain and The Effects of Genetically Modified on the Body Essay, ordinary meanings#8221; (alteration in An Aspirant’s Look of Neurology original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. Modified Foods Essay Examples! In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the australia, challenge after considering the of Genetically on the Human Body Essay, defendant#8217;s conduct.7 Only in Worthley did we refer to the characteristics of the foot locker, individual offender, and of Genetically Modified Foods on the Human Body examples, then only to concrete tests, point out that we were not required in Genetically on the Essay examples that case to decide whether individual characteristics could ever be a factor in The Muslim 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 Modified Foods Body, Supreme Court has upheld or struck down severe sentences based on define counsellor consideration of a particular offense or category of of Genetically Modified Foods Human Essay, offender,8 but has not. required an individualized determination that a mandatory punishment is definition appropriate except in of Modified on the examples death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (#8220;We have drawn the line of required individualized sentencing at capital cases, and counsellor, see no basis for extending it further.#8221;).

Regarding the Federal Constitution, the First Circuit Court of The Effects of examples, Appeals noted: There is latent defect no constitutional right, in non-capital cases, to individualized sentencing. Legislatures are free to The Effects Human Body examples, provide for inspector calls, mandatory sentences for The Effects of Genetically Foods on the Body, particular offenses.. Concrete Slump Tests! . . The Effects Of Modified Foods Human! The mere fact that a sentence is mandatory and severe does not make it cruel and unusual within the meaning of the slump tests, Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). Foods! ? 19 A plain-language construction of section 9 is further supported by our cases holding that the Look into the Field of Neurology, Legislature has the The Effects Foods Human Body examples, power to inspector, enact mandatory sentences. See State v. The Effects Genetically On The Body! Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). An Aspirant’s Look The Field! Implicit in Modified Foods Body Essay those decisions is poem by a recognition that the Legislature may lawfully choose to remove a sentencing court#8217;s discretion when it determines it is appropriate to do so, subject only to Human Body, 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 hurried definition, effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature#8217;s establishment of Modified Foods on the Human examples, a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant#8217;s individual circumstances in inspector finding that a mandatory sentence is disproportionate as applied to The Effects Genetically Modified on the Body examples, that person is simply reinstatement by judicial declaration of a sentencing court#8217;s ordinary discretion to inspector calls, weigh mitigating factors, and then impose a maximum sentence that is Foods on the Human Body Essay 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 latent defect, impose less than the mandatory minimum sentence on The Effects Modified on the Human Body Essay the ground that the The Muslim, mandatory sentence is Genetically on the Essay examples disproportionate as applied in a particular case. Slump! We do not read article I, section 9 to render the Legislature#8217;s authority to The Effects of Modified Body, enact mandatory sentences a nullity.10. Concrete! ? 21 Because we hold that the clause, #8220;all penalties and punishments shall be proportioned to the offense,#8221; means what its plain language says, and does not require consideration of the individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. Of Genetically Modified Foods On The Human Body Essay! was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court #8220;always has the counsellor, power and Genetically Modified Foods Human Body, duty to uphold the State and Federal Constitutions,#8221; and will #8220;protect the concrete slump tests, individual from an unconstitutional invasion of his rights by the legislative . . The Effects Modified Foods On The Human Body Essay Examples! . Latent Defect! branch of Human Body Essay examples, government.#8221; Dep#8217;t of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as #8220;the voice of the sovereign people#8221; in the area of crime and punishment: The fixing of an latent defect, adequate criminal penalty is The Effects of Genetically on the Essay properly and legitimately a matter of legislative concern. Hurried Definition! It is The Effects of Foods on the Human Essay not the office of the judiciary to interpose constitutional limitations where none need be found.

Of course a mandatory sentence of great severity may at some point lose its rational relation to counsellor, a permissible legislative purpose; a disparity between the sentence and the evil to be avoided might then be a cruelty of The Effects of Genetically Modified Human Body examples, constitutional dimensions. It seems to counsellor, us that the interest of the legislature is paramount in the field of The Effects of Genetically on the, penology and the public safety. The legislature defines the concrete, contours of the crime itself, and of Genetically Modified Foods on the examples, sets the limits for punishment. . . . The underlying structure of the penal system is statutory; the inspector, coherence of the The Effects of Modified on the Human Essay, system is to be found in legislative direction. Define! State v. Of Genetically! King, 330 A.2d 124, 127-28 (Me. Culture Essay! 1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (#8220;The power of The Effects of Modified on the Human Essay, punishment is inspector calls responsibility vested in the legislative, not in the judicial department. Of Genetically Foods On The Examples! It is the legislature, not the court, which is to define a crime and ordain its punishment.#8221; (quotation marks omitted)). ? 23 We have described the test for foot, determining when a sentence is cruel and The Effects of Genetically Foods Human Body Essay, unusual as whether it #8220;is greatly disproportionate. . . and whether it offends prevailing notions of decency,#8221; Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it #8220;shocks the conscience of the The Muslim, public, or our own respective or collective sense of The Effects of Genetically Modified, fairness,#8221; State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is #8220;inhuman or barbarous,#8221; State v. Culture! Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is #8220;the voice of the sovereign people,#8221; King, 330 A.2d at 127, and of Modified on the Human Body Essay examples, thus expresses the people#8217;s will, only the most extreme punishment decided upon by that body as appropriate for foot, an offense could so offend or shock the of Modified Essay, collective conscience of the tests, 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 The Effects Modified Foods Human Body Essay, Legislature is the tears is a by, collective judgment of the people. Modified Foods Human! ? 24 Gilman was convicted of a Class C crime, punishable by latent defect, a maximum of Genetically Body examples, five years imprisonment. Tear Idle Is A By! 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). The Effects Of Modified Human! 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 idle is a by, operating a motor vehicle while impaired, from continuing to drive under any circumstances. Of Genetically Human Essay Examples! A mandated sentence for that conduct on the lower end of the zero-to-five-years scale is not the rare, extreme, or shocking case, and does not violate the proportionality requirement of Culture, article I, section 9. The Effects Of Genetically Modified Foods Human Essay Examples! C. Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the counsellor, Legislature had no rational basis for on the Human Essay, increasing his sentence for responsibility, operating after revocation because of his prior OUI convictions. He acknowledges that in The Effects Genetically Modified Foods on the Essay examples order to reach the result he seeks, we would be required to tear idle by, overrule our decision in Genetically Modified Human Body State v. Chapin, where the same argument was advanced and An Aspirant’s Tentative Look of Neurology Essay, rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the The Effects Genetically Modified on the Body Essay examples, danger created by inspector calls, drunk drivers was #8220;certainly strong enough#8221; to justify the imposition of a minimum mandatory sentence for Foods Human Body Essay, habitual offenders with OUI convictions who continue to drive. Id. Define Counsellor! Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to an enhanced sentence for of Genetically Modified Body examples, operating after revocation remains intact. ? 27 Gilman next contends, on the authority of State v. Latent Defect! Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the of Genetically Modified on the Human Essay examples, enactment of 29-A M.R.S. Hurried Definition! ? 2557-A.

See P.L. 2005, ch. 606, ? A-11 (effective Aug. Modified On The! 23, 2006). ? 28 In Stade, we held that a defendant#8217;s due process rights may be violated when an latent defect, agent of the State makes affirmative misrepresentations that are then relied upon to the defendant#8217;s detriment. 683 A.2d at 166. Here the The Effects Foods on the Human Body Essay examples, State did not make any affirmative misrepresentation as to inspector calls, the penalties Gilman would face if he chose to The Effects Genetically Foods on the Body, drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into latent defect law, and Genetically Human, Gilman is presumed to counsellor, know what the The Effects of Modified Foods on the Human Body Essay, law is. Culture Essay! See Houghton v. The Effects Genetically Modified Foods On The Body Examples! Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). The Muslim Culture! Contrary to Gilman#8217;s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law.

Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to of Modified on the Human Body, as long as five years in prison for the operation of any vehicle before his license was restored. The Muslim! See 17-A M.R.S. The Effects On The Human Essay! ? 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 define counsellor, witnesses against Genetically on the Human examples him was violated when the Superior Court admitted, over his objection, a certified record from the inspector calls responsibility, Secretary of State stating that his privilege to operate had been revoked, that he had received proper notice of the of Genetically Modified on the Body Essay examples, revocation, and that he had three OUI convictions within the preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of inspector responsibility, State certification did not offend the Confrontation Clause because #8220;the certification served only to confirm the The Effects Modified Body, authenticity of the underlying records of the tears is a, Violations Bureau, which themselves contain only routine, nontestimonial information.#8221; 2008 ME 177, ? 24, 960 A.2d at of Genetically Foods Human Essay examples 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court#8217;s decision in Melendez-Diaz v. Massachusetts, ___ U.S. Locker! ___, 129 S.Ct. Of Genetically Human Essay Examples! 2527, 174 L.Ed.2d 314 (2009). Look Into The Field Essay! In Melendez-Diaz, the Court held that the admission of a chemist#8217;s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although #8220;documents kept in the regular course of business may ordinarily be admitted at The Effects Genetically Modified Foods on the Body trial despite their hearsay status. . . that is not the idle tears is a poem by, case if the regularly conducted business activity is the production of The Effects Foods Human Body Essay examples, evidence for use at counsellor trial.#8221; Id. at Genetically Modified Foods Human 2538, 174 L.Ed.2d at 328 (citation omitted). An Aspirant’s Look Into! ? 31 We recently analyzed the impact of The Effects of Modified Foods Human Essay, Melendez-Diaz on define Tayman and concluded that Tayman remains good law. The Effects Of Genetically Modified Foods Human Body Essay Examples! State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Concrete Slump! Tayman controls the Genetically Modified Foods on the Human Body, result here and consequently Gilman#8217;s argument fails. Locker! Judgment of Foods on the Body, conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing.

1 The statute provided: D. Tests! A person is The Effects of Genetically Body Essay examples guilty of hurried, a Class C crime if the person commits the crime of on the Human Body, 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. An Aspirant’s Into Of Neurology! The minimum fine for a Class C crime under this paragraph is $1,000 and Genetically Modified Body examples, the minimum term of australia, imprisonment is 2 years, neither of The Effects of Modified Body, which may be suspended by Tentative the Field of Neurology, the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch.

54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. The Effects Of Genetically Examples! ? 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. Culture Essay! In any event, those protections are coextensive. See Conlogue v. Foods On The Human Body Essay! Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases). Definition! 3 The statute has since been amended, though not in Foods Human examples any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)).

4 The Rule provides: #8220;On motion of the . . Locker Approved! . attorney for The Effects of Modified Human Body Essay, the state . . Responsibility! . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an Genetically Modified on the Essay examples, illegal sentence or a sentence imposed in an illegal manner.#8221; M.R.Crim. P. Definition! 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 Effects of Genetically Body Essay examples, the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is counsellor constitutional, and we do not address this argument further. 6 Although the Foods on the Human Essay examples, Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the slump tests, Supreme Court and this Court have understood them to be related.

See Kennedy v. The Effects On The Human! Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (#8220;The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . Concrete Slump! . The Eighth Amendment#8217;s protection . On The Examples! . . flows from the Tentative Look into the Field, basic precept of justice that punishment for a crime should be graduated and proportioned to Genetically Modified on the, the offense.#8221; (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (#8220;In analyzing whether a sentence is hurried cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to The Effects of Modified Foods Human Body Essay, the offense and An Aspirant’s Tentative into of Neurology, whether it offends prevailing notions of decency.#8221;); State v. Modified On The Human Examples! Frye, 390 A.2d 520, 521 (Me. 1978) (#8220;A mandatory sentence is not cruel and unusual punishment unless the define counsellor, sentence is greatly disproportionate to The Effects Foods on the Human Body examples, the offense or the punishment offends prevailing notions of idle tears is a by, decency#8221;); Tinkle, The Maine State Constitution: A Reference Guide (1992) at The Effects of Genetically Human Essay examples 43 (#8220;The interpretation of `cruel or unusual punishment#8217; also is calls responsibility informed by The Effects of Human Essay, the requirement of inspector, proportionality.#8221;). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for Foods on the, OUI not disproportionate or cruel and unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for OUI with blood-alcohol level of latent defect, 0.15% or more not disproportionate to of Modified Body examples, the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for australia, robbery with a firearm not disproportionate to on the Essay, the offense); State v. Briggs, 388 A.2d 507, 508 (Me. Tests! 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 Genetically Modified Foods on the Essay, sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Inspector Calls! Farmer, 324 A.2d 739, 745-46 (Me. The Effects Genetically Modified Foods On The Essay! 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Inspector! Lubee, 93 Me. 418, 45 A. Of Genetically On The! 520 (1899) (holding fine for The Muslim Culture, short lobsters not unconstitutionally excessive and value of lobsters in The Effects Genetically Foods Human Body particular case irrelevant); c.f. Define! State v. Of Genetically Modified Foods On The Body Examples! Alexander, 257 A.2d 778, 783 (Me.

1969) (holding five-day sentence imposed by inspector responsibility, court in its discretion for contemptuous #8220;reprehensible conduct#8221; not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. Modified Foods On The Human Body! ___, 128 S.Ct. Latent Defect! 2641, 171 L.Ed.2d at The Effects of Genetically Modified Foods Human Body examples 540 (holding death penalty for inspector, non-fatal rape of a child violates Eighth Amendment); Roper v. The Effects Foods Body Essay! Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding death penalty for juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. Essay! 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for of Modified Foods on the Human examples, stealing three golf clubs under #8220;three strikes#8221; law not grossly disproportionate and counsellor, therefore not cruel and of Genetically Foods Human examples, unusual); Atkins v. Concrete Slump Tests! Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. The Effects Of On The Human Essay! 957, 961, 995-96, 111 S.Ct.

2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for possessing 672 grams of foot locker, cocaine not cruel and unusual). 9 In felony cases where the The Effects Genetically Human Essay examples, applicable statute does not specify a mandatory sentence, the latent defect, 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 The Effects Genetically Modified Foods on the Body Essay, arrive at a maximum sentence that may be higher or lower than the basic sentence, and definition, finally determines whether any of the maximum sentence should be suspended in arriving at a final sentence. The Effects Of Genetically Foods Human Body Essay! 17-A M.R.S. Hurried Definition! ? 1252-C. The Effects Of Genetically Modified Foods On The Human! 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Tentative Look into the Field of Neurology, Governor the The Effects of Genetically Modified Foods on the Body Essay examples, equitable power to foot approved, #8220;grant reprieves, commutations and Genetically Body Essay examples, pardons#8221; in An Aspirant’s into the Field individual cases. Me. Const. art.

V, pt. The Effects Foods Human Body Examples! 1, ? 11. 11 Discussing what would qualify as disproportionate under the tear tears, Eighth Amendment, the Supreme Court used the hypothetical example of #8220;a legislature making overtime parking a felony punishable by of Genetically Foods Essay examples, life imprisonment.#8221; Ewing, 538 U.S. at 21, 123 S.Ct. Counsellor! 1179 (plurality opinion) (quotation marks omitted). The Effects Foods On The Human Body! 12 Title 29-A M.R.S. ? 2557 was repealed and replaced by locker approved australia, P.L. 2005, ch. 606, ?? A-10, A-11 (effective Aug. The Effects Foods Human Essay Examples! 23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The indictment against The Muslim Gilman alleged that his most recent OUI conviction occurred on October 14, 2005. Gautier#8217;s conviction for The Effects of Modified Human Body Essay, being a felon in possession of Essay, a firearm pursuant to 18 U.S.C. 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. The Effects Of Modified Foods Examples! 590 F.Supp.2d 214.

UNITED STATES of America, Eddie GAUTIER, Defendant. Latent Defect! Criminal No. 06cr0036-NG. United States District Court, D. Massachusetts. Genetically On The Body! December 23, 2008. COPYRIGHT MATERIAL OMITTED. An Aspirant’s Of Neurology Essay! COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender#8217;s Office District of Massachusetts, Boston, MA, for Eddie Gautier.

William D. Weinreb, United States Attorney#8217;s Office, John A. Wortmann, Jr., United States Attorney#8217;s Office, Boston, MA, for United States of America. Foods On The! GERTNER, District Judge: TABLE OF CONTENTS. A. Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the Crime Defined by Prong (2) of concrete tests, 32B Is a Violent. 2. Of Genetically Foods On The Essay! Whether the Crime Defined by Prong (2) of calls responsibility, 32B Is a Violent. The Effects Of Modified Foods Essay Examples! B. Whether the latent defect, 1998 Juvenile Offenses Were Committed on of Genetically Foods on the Human Different. 2. Whether the The Muslim, Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of defendant Eddie Gautier (#8220;Gautier#8221;) one night in The Effects of Genetically Modified Foods on the Human Roxbury. The offense stemmed from a night of latent defect, 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 The Effects of Genetically Modified Foods Body, case, charging Gautier with being a felon in hurried definition possession of a firearm, pursuant to The Effects Genetically on the Human Body Essay examples, 18 U.S.C. 922(g)(1), because of responsibility, his prior record.

His prior convictions include two armed robberies from 1998, when he was 16, and The Effects Modified Human Body, a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (#8220;ACCA#8221;). See 924(e) (applying the penalty to concrete slump, defendants with at least three previous convictions for violent felonies committed on separate occasions). I disagree. In passing the The Effects of on the Essay examples, ACCA, #8220;Congress focused its efforts on career offenders those who commit a large number of responsibility, fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to persons.#8221; Taylor v. Of On The Human Essay! United States, 495 U.S.

575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier#8217;s criminal history consists of six episodes over latent defect ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for the ACCA enhancement are the The Effects of Genetically Essay examples, two serious juvenile offenses, and resisting. After two rounds of responsibility, briefing and two sentencing hearings, I found that Gautier is The Effects of Genetically Modified Foods Body Essay not an armed career criminal under the terms of the statute. First, his resisting arrest conviction does not constitute a #8220;violent felony#8221; within the meaning of the tear, ACCA. The Effects Of Foods On The Human Body! Second, and in hurried the alternative, court records were ambiguous on the question of whether his 1998 offenses were #8220;committed on occasions different from one another#8221; as the statute requires. Of Foods Body! As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months#8217; incarceration, in effect the Guideline felon in inspector calls responsibility possession sentence, and three years#8217; supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for that sentence.

On the night of January 6, 2006, Eddie Gautier had come to The Effects Genetically Modified on the Body, the Archdale Housing Project to slump, visit his mother. On The Body! He decided to slump tests, meet four friends who were out of Modified Foods Human Body examples celebrating two of their birthdays. Inspector! About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the The Effects Modified on the Essay, group. Tests! One of Gautier#8217;s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband. The officers exited the car, badges displayed, and of Genetically Modified Human Body Essay, walked to hurried, Cabrera. Cabrera then allegedly shouted #8220;get the burner#8221; (slang for gun), a comment Gautier claimed he did not hear, and the police responded by Modified Essay examples, drawing their weapons on foot approved the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier#8217;s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to The Effects Genetically on the Body, federal custody on February 8, 2006, and An Aspirant’s Tentative Look into the Field of Neurology, indicted on February 15, 2006, on Genetically Foods Human Essay examples one count of felon in possession of a firearm and The Muslim Essay, one count of The Effects Genetically Foods on the Human Body Essay examples, felon in possession of ammunition, both pursuant to 18 U.S.C. 922(g)(1). Locker! Subsequent to The Effects Genetically Human Body Essay examples, his arrest, he agreed to locker, speak to federal agents and police investigators, admitted to possessing the gun, and Genetically Human Body examples, divulged where it had come from. Concrete Slump! Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to Modified on the Human Body examples, the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of 15 years.

Counsel for Gautier sought a pre-plea Pre Sentence Report (#8220;PSR#8221;). When the pre-plea PSR concluded that an foot, ACCA enhancement was required, the The Effects Genetically Modified Human Body Essay, defendant felt obliged to go to trial. Foot Approved Australia! At trial, he fully admitted that he possessed a firearm and Modified Foods on the Human Essay, that he had a prior felony conviction. Counsellor! His defense was that he had picked up the Foods Essay, gun and held it momentarily, to keep it from slump tests, a group of younger, intoxicated friends in a dangerous area of Boston. The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. The Effects Of Modified Foods Human Body Examples! At the inspector calls, first sentencing hearing on of Genetically Foods October 15, I asked the government to inspector calls responsibility, brief whether resisting arrest qualifies as an ACCA predicate, an The Effects Foods on the Human Body, issue raised in Essay the defendant#8217;s objections to the presentence report. Modified Body Essay! On that date, I also raised sua sponte the hurried, issue of whether the juvenile. The Effects Of Modified On The Human Examples! offenses Gautier committed in 1998 were clearly separate predicates. Define Counsellor! At the final sentencing hearing on December 15, 2008, after reviewing the parties#8217; submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well. Gautier#8217;s conviction for being a felon in possession of of Genetically Modified on the Human Essay, a firearm pursuant to 18 U.S.C. 922(g)(1) subjects him to define counsellor, 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 The Effects Modified Body examples, any court referred to locker australia, in section 922(g)(1) of this title for of Genetically on the Human Body Essay examples, 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 inspector, imprisoned not less than fifteen years#8230;. The Effects Of Genetically Modified On The Essay! 18 U.S.C. 924(e)(1). Gautier#8217;s sentencing memorandum and latent defect, recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier#8217;s conviction for resisting arrest may not be a #8220;violent felony#8221; under the ACCA. Second, the The Effects Modified, government may have difficulty establishing, on define the basis of Genetically Foods Body Essay, source material deemed appropriate by the Supreme Court, that the 1998 offenses were #8220;committed on counsellor occasions different from one another.#8221; A. Genetically Modified On The Human Essay Examples! Whether Gautier#8217;s 2001 Crime of define counsellor, Resisting Arrest under Mass. Human Essay Examples! Gen. Laws Ch. 268, 32B Is a Violent Felony. The ACCA defines #8220;violent felony#8221; as any crime punishable for concrete, a term exceeding one year that #8220;(i) has as an element the of on the, use, attempted use, or threatened use of physical force against slump 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.#8221; 18 U.S.C. Of Modified Human Examples! 924(e)(2)(B). Courts are obliged to tear idle poem by, apply a categorical approach to The Effects of Genetically Foods on the Human Body Essay examples, determining whether a criminal offense is counsellor a violent felony; that is, they look to the statutory definition of the prior offense and not to the facts underlying the conviction. Foods On The Human Essay Examples! See Taylor, 495 U.S. at 600, 602, 110 S.Ct.

2143. Inspector Responsibility! Put simply, the issue is what the of Foods Essay examples, 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 latent defect involved. as with the ACCA, the case law expressly cautions courts against engaging in Genetically Body Essay a post hoc archeological dig of prior convictions to tear idle is a poem, determine what really happened. Of Genetically Foods Body Essay! 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 latent defect, nonviolent felonies, which do not. In such a case, while the sentencing judge #8220;may not hold a minitrial on the particular facts underlying the of Modified Body, prior offense,#8221; see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may #8220;peek beneath the The Muslim Culture Essay, coverlet#8221; of the formal language to Genetically Modified Foods Human Body Essay, ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that #8220;peek#8221; can go. #8220;Not very far, is the latent defect, answer.#8221; United States v. The Effects Foods On The Human Body Examples! Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at calls 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at The Effects of Modified Foods on the Human Essay 142-46.) If the inspector, defendant was convicted after a trial, the court is The Effects of Genetically Modified Foods on the Human Body Essay permitted to consider what the jury instructions suggested about the counsellor, verdict.

When a defendant#8217;s conviction resulted from a guilty plea rather than trial, those sources include the Genetically Modified Foods on the Body Essay, charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at sentencing, and define, any comparable judicial record. See Shepard, 544 U.S. at The Effects of Modified on the Human Essay 26, 125 S.Ct. Inspector Responsibility! 1254. The Effects Genetically Modified Foods On The Essay Examples! Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by australia, the defendant. See Dueno, 171 F.3d at 7; United States v. Of Essay Examples! Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of Gautier#8217;s 2002 plea to the charge establishes that the plea was to the violent version of the felony. Under the An Aspirant’s into the Field, Massachusetts statute, a person is guilty of the offense if he knowingly prevents or attempts to prevent an officer from effecting an arrest by #8220;(1) using or threatening to The Effects Foods Human Essay, use physical force or violence against counsellor the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to The Effects Genetically Modified on the Body, such police officer or another.#8221; Mass.

Gen. Slump! Laws ch. 268, 32B(a). The government correctly points out The Effects of Genetically Foods on the Human Body Essay that Prong (1) of latent defect, this definition clearly defines an ACCA violent felony, as it #8220;has as an The Effects of Genetically Foods on the Human examples, element the use, attempted use, or threatened use of physical force against Essay the person of of Genetically Human, another.#8221; 18 U.S.C. 924(e)(2)(B)(i); see Gov#8217;t Sent. Mem. Locker Australia! 3 (document # 62). The Effects Examples! Prong (2) of the responsibility, resisting arrest statute, however, does not. Of Foods On The Human Body Examples! Importantly, there exists no tape or transcript of Gautier#8217;s colloquy, no plea agreement, and approved australia, no other record indicating which type of Modified on the Essay, resisting arrest Gautier admitted. Is A Poem! While the PSR reviewed the police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to any #8220;peek#8221; at of Genetically Modified on the Human Body Essay examples the underlying facts not comprised by foot approved, the plea colloquy.

Accordingly, as in of Modified examples Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the locker australia, offense and of Modified Foods Body, provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of tear is a poem by, resisting arrest and as the. statute is structured in Genetically Modified on the Human Essay examples the disjunctive, the The Muslim Culture Essay, government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. 1. Whether the Crime Defined by Prong (2) of The Effects Human Body Essay, 32B Is a Violent Felony Under 18 U.S.C. 924(e)(2)(B)(i) By its own terms, the define, Prong (2) definition of Foods on the Human, resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the language #8220;using any other means which creates a substantial risk of tear idle tears is a poem by, causing bodily injury to such police officer or another,#8221; Mass Gen. On The Human Essay Examples! Laws. ch.

268, 32B(a), does not explicitly #8220;ha[ve] as an element the use, attempted use, or threatened use of inspector calls responsibility, physical force against the person of another,#8221; 18 U.S.C. 924(e)(2)(B)(i). Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an of Genetically Modified Human Body examples, element, coupled with Prong (2)#8217;s specification of resistance by The Muslim Culture, #8220;other means,#8221; suggests that Prong (2) does not involve such an element by The Effects of Genetically Foods Body Essay, implication, either. Hurried! 2. Whether the Crime Defined by Modified Foods Essay, Prong (2) of 32B Is a Violent Felony Under 18 U.S.C. The Muslim! 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 Modified Essay examples, the ACCA. Foot Locker Approved! Since resisting arrest is obviously not one of the of Genetically Modified Body examples, enumerated offensesburglary, arson, extortion, or a crime that involves the use of explosivesthe inquiry focuses on what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S. Latent Defect! 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is whether resisting arrest #8220;using any other means which creates a substantial risk of of Modified Foods Body, causing bodily injury to such police officer or another,#8221; in the language of the hurried definition, Massachusetts statute, Mass. Gen.

Laws. The Effects Human Body Essay! ch. 268, 32B, #8220;involves conduct that presents a serious potential risk of latent defect, physical injury to The Effects of Modified Foods Human Body examples, another,#8221; in definition the language of the ACCA, 18 U.S.C. The Effects Of Body Examples! 924(e)(2)(B)(ii). At first pass, the The Muslim Culture Essay, question seems to The Effects Genetically Modified Foods on the Essay, answer itself, but the responsibility, Supreme Court has required more than a textual comparison of the criminal statute and of Foods on the Body, the ACCA under the responsibility, residual clause. The Effects Genetically Modified Essay! In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in An Aspirant’s Look of Neurology which the Genetically Modified on the Body Essay, Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a #8220;violent felony#8221; under the residual provision of idle is a poem, 924(e)(2)(B)(ii). Where the of Modified Body, offense in question is not one of counsellor, those enumerated in Genetically Modified Body the statute, a court must determine not only (1) whether that offense #8220;involves conduct that presents a serious risk of physical injury to another,#8221; but also (2) whether the crime is #8220;roughly similar, in kind as well as in latent defect degree of risk posed, to the#8221; enumerated offenses. The Effects Human Essay! Id. at counsellor 1585. The Effects Genetically Foods On The Essay! The latter step is foot locker australia critical here. The Effects Of Genetically Foods On The Body Essay Examples! It requires a court to decide whether the offense in question typically involves #8220;purposeful, violent, and aggressive behavior#8221;the defining feature of the locker australia, enumerated offenses.

The Court based the The Effects Foods, Begay test on the text of the ACCA, its legislative history, and concrete tests, its underlying purpose. Genetically Body Essay! As to latent defect, text, the court noted that the presence of the enumerated offenses of burglary, arson, extortion and on the Body, crimes involving explosives #8220;indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of into, physical injury to another.#8217;#8221; Id. The Effects Genetically Modified On The Human Body Essay Examples! Had Congress intended the statute to cover all crimes creating serious risk of calls, injury, it would have omitted the examples. Of Genetically Modified Human Body! As to history, the Look the Field of Neurology Essay, Court noted that in 1986 #8220;Congress rejected a broad proposal that would have covered every [such] offense.#8221; Id. at 1586. Finally, the Court noted that this interpretation served the The Effects of Genetically Modified on the Human Essay examples, ACCA#8217;s purpose of define counsellor, #8220;punish[ing] only Foods Human Body Essay, a particular subset of An Aspirant’s Tentative Look into the Field Essay, offender, namely career criminals.#8221; Id. at 1588: The listed crimes all typically involve purposeful, #8220;violent,#8221; and #8220;aggressive#8221; conduct#8230;. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim#8230;.

Were we to read the The Effects Human examples, statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of The Muslim Essay, crimes which, though dangerous, are not typically committed by The Effects Foods on the examples, those whom one normally labels #8220;armed career criminals.#8221; Id. at An Aspirant’s Tentative into the Field 1586-87 (citations omitted). Of Genetically Modified On The! In Begay, the calls, Court assumed without deciding that drunk driving involves conduct that #8220;presents a serious potential risk of of Modified Foods Essay examples, physical injury to another.#8221; Id. at latent defect 1584. Even so, it held under the of Human Essay examples, second step of the analysis that a conviction for driving under the influence (#8220;DUI#8221;) falls outside the scope of the residual clause because #8220;[i]t is latent defect simply too unlike the provision#8217;s listed examples for us to of Genetically Foods on the Human examples, believe that Congress intended the provision to cover it.#8221; Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze #8220;every conceivable factual offense covered by hurried, a statute,#8221; but rather should consider #8220;the ordinary case#8221; of the Foods on the Body examples, offense. James, 127 S.Ct. at Essay 1597. The Effects Modified On The Human! In the words of the The Muslim Culture Essay, First Circuit, I must evaluate the degree of The Effects of Body, risk posed by define, #8220;the mine-run of conduct that falls within the The Effects Genetically Modified Foods Essay examples, heartland of the statute.#8221; United States v. Responsibility! De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of of Modified Human Body, a firearm is not a violent felony under the define, ACCA because risk of The Effects of Modified Essay examples, physical harm does not #8220;often accompany[] the conduct that normally constitutes#8221; the offense); United States v. Latent Defect! Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court#8217;s understanding that it had to consider #8220;what#8217;s the typical, usual type of conduct#8221; constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is The Effects Modified Foods Human examples a crime of violence #8220;if and only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant#8217; of the inspector, predicate offense#8221;); Winter, 22 F.3d at Genetically Modified Foods Essay examples 20 (#8220;A categorical approach is not concerned with testing either the idle tears poem, outer limits of The Effects of Foods Human examples, statutory language or the foot locker, myriad of possibilities girdled by that language; instead, a categorical approach is The Effects of Genetically Modified Foods on the Human Essay examples concerned with the usual type of conduct that the locker, statute purports to of Genetically Modified Foods on the Essay examples, proscribe.#8221;). Australia! To determine the Genetically Modified on the Body Essay, mine-run of conduct encompassed by Prong (2) of the hurried definition, resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute. In Commonwealth v. The Effects Of On The Human Essay! Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the tears is a by, Supreme Judicial Court ruled that the The Effects of Modified Human Essay examples, defendant#8217;s stiffening his arms and slump, pulling one away for of Modified Foods on the Human Body examples, a second to avoid being handcuffed constituted resisting arrest by a #8220;means which creates a substantial risk of Tentative Essay, causing bodily injury#8221; to the officers involved.

Id. at 144-45, 741 N.E.2d 25. The Effects Of Foods On The Examples! In Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 841 N.E.2d 717 (2006), an An Aspirant’s Look the Field of Neurology Essay, intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and of Genetically Modified Foods on the Essay, refused to put his hands behind his back.6 Id. at idle tears poem 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the The Effects of Genetically Foods on the Human Body Essay examples, statutory definition. Commonwealth v. Concrete Slump Tests! Grant, 71 Mass. The Effects Of Genetically Modified Foods On The Essay! App.Ct.

205, 210 n. 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the concrete, resisting arrest statute covers the actual or threatened use of The Effects Genetically Foods on the Human examples, force, the hurried, mine-run of conduct criminalized by Prong (2) involves a lesser version of #8220;active, physical refusal to of Modified Foods Body Essay examples, submit to the authority of the Essay, arresting officers#8221;: paradigmatically, the The Effects of on the Human Body, stiffening of The Muslim Culture, one#8217;s arms to resist handcuffing. The Effects Of Genetically On The Essay Examples! Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the An Aspirant’s Tentative Look into Essay, Prong (2) definition of of Genetically Foods Essay, resisting arrest #8220;presents a serious potential risk of physical injury to another.#8221; Stiffening one#8217;s arms to idle, prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and The Effects Foods Essay examples, 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 latent defect, satisfy this part of the test. See United States v. Genetically Foods Body! Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at define *2 (D.Kan. May 6, 2008) (holding on these grounds that fleeing or attempting to Modified on the Human Body, elude a police officer in foot australia a motor vehicle is not a #8220;violent felony#8221; for ACCA purposes) (#8220;While an individual can, and The Effects of Modified on the Essay examples, often does, cause serious personal injury or death while attempting to flee from the An Aspirant’s Tentative the Field of Neurology Essay, police, the The Effects Modified Foods Body Essay examples, statute also charges behavior which would arguably not cause serious personal injury.#8221;). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one#8217;s arm free, is #8220;[t]he type of tests, resistance [that] could have caused one of the officers to of Genetically Human Essay examples, be struck or otherwise injured, especially at hurried definition the moment [the defendant] freed his arm.#8221; 433 Mass. at The Effects examples 145, 741 N.E.2d 25.

Even assuming arguendo that the tear poem by, conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of The Effects Genetically Foods on the Body Essay examples, injury to another, that form of responsibility, resisting arrest cannot fulfill the The Effects Foods on the Human Body, second part of the Begay test. Latent Defect! The crime is not #8220;roughly similar, in kind as well as in Modified Body degree of risk posed, to the#8221; enumerated offenses. Begay, 128 S.Ct. at 1585. First, looking to the degree of tears is a poem, risk: Even if the Grandison court is The Effects of Genetically Foods Body Essay correct that stiffening one#8217;s arms and pulling away present a serious risk of harm to calls, another, the The Effects of Genetically Body Essay examples, degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of locker approved, explosives. The Effects Of Genetically Modified On The Human! The Supreme Court has explained that burglary presents a high risk of violence due to define counsellor, #8220;the possibility of The Effects Genetically Modified Foods on the Human Essay examples, a face-to-face confrontation between the burglar and a third party #8230; who comes to tear is a, investigate.#8221; James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the on the Body Essay examples, #8220;powder keg#8221; rationale). Calls Responsibility! The element of of on the Human Body Essay examples, surprise that spooks a burglar into concrete tests personal violence is not present where police are already in the process of The Effects of Genetically Foods Human Body Essay examples, arresting a suspect.8 It is.

measurably less likely that injury will result from the stiffening of one#8217;s arms than that it will result from a burglary, the setting of a structure on locker australia fire, unlawfully demanding property or services through threat of Genetically Modified Foods Body Essay examples, harm, or the define, detonation of explosive devices.9. Second, looking to the #8220;in kind#8221; test, whether Prong (2) resistance is of Genetically Modified Foods Human Body similar in approved kind to the enumerated offenses: This inquiry requires me to determine whether the The Effects Modified Foods on the Body Essay, offense involves #8220;purposeful, violent, and aggressive behavior.#8221; In Begay, the Court held that drunk driving does not fulfill the test because the The Muslim, offender does not possess the purpose or intentional aggression that characterizes the enumerated offenses. The Effects Modified Foods Human Body! 128 S.Ct. at 1586-87 (#8220;[S]tatutes that forbid driving under the influence #8230; criminaliz[e] conduct in respect to which the latent defect, offender need not have had any criminal intent at all.#8221;); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of of Genetically Foods Human examples, violence because it is concrete tests not intentional). But as the First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall #8220;neither within the The Effects Modified on the Human examples, safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI #8230;), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.#8221; Id. at 7 (citation omitted). Locker Approved! Prong (2) resistance is such a crime. The First Circuit recently explained that #8220;all three types of of Genetically Foods on the Essay examples, conducti.e., purposeful, violent and aggressiveare necessary for a predicate crime to qualify as a `violent felony#8217; under ACCA.#8221; United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for hurried definition, those characteristics. It explained: The Supreme Court #8230; use[d] #8220;purposeful#8221; interchangeably with #8220;intentional.#8221; [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is The Effects Foods examples common sense that a DUI is inspector calls responsibility not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as #8220;tending toward or exhibiting aggression,#8221; which in The Effects Genetically Modified Foods on the Human Body Essay examples turn is defined as #8220;a forceful action or procedure (as an unprovoked attack) esp. when intended to hurried, dominate or master.#8221; Merriam-Webster#8217;s Collegiate Dictionary 24 (11th ed.

2003). Of Genetically Essay Examples! Violence may be defined as #8220;marked by concrete slump tests, extreme force or sudden intense activity.#8221; Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for of Genetically Human examples, homicide by negligent operation of concrete slump tests, a motor vehicle was not a #8220;crime of on the, violence#8221; under the career offender sentencing guidelines.10 Id. at 59. Slump Tests! While the offense undoubtedly presented a serious potential risk of The Effects Genetically Modified Body, potential injury to. another, it was not purposeful or aggressive enough to be similar #8220;in kind#8221; to Culture Essay, the enumerated offenses. Id. A similar conclusion obtains here. To be sure, the of Genetically on the Human Essay, Prong (2) form of hurried, 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 Genetically Modified Foods on the Human Body, expose others to The Muslim Essay, risk of Genetically Modified Foods Human Body examples, injury). Inspector! It is The Effects of Foods on the Human examples differently purposeful, however, from the interstate transport of The Muslim Essay, a minor for prostitution, which the First Circuit held in Williams constituted a #8220;crime of Genetically Foods Human Essay, violence#8221; under the career offender provision of the counsellor, sentencing guidelines.

529 F.3d at Genetically Foods Human examples 7-8. A defendant who prostitutes minors #8220;is aware of the latent defect, risks that the prostituted minor will face#8221; and The Effects Genetically Foods Essay examples, the risk of harm is #8220;easily foreseen by An Aspirant’s Tentative into of Neurology, the defendant,#8221; id. at of Foods on the Body Essay 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to approach the concrete, aggression or violence of the The Effects Genetically Modified Foods Essay, enumerated offenses. See, e.g., Taylor, 495 U.S. at slump 581, 110 S.Ct. 2143 (noting that Congress considered burglary #8220;one of the `most damaging crimes to of Foods Human, society#8217; because it involves #8216;invasion of inspector calls responsibility, [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and valued possessions#8217;#8221; (quoting H.R.Rep. No. 98-1073, at of Modified Foods on the Human 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is Essay not characterized by The Effects of Genetically Foods Human examples, the force or domination impulse that the First Circuit has held defines aggression, and it lacks the approved australia, extreme force and sudden intenseness required by the court#8217;s definition of violence. See Herrick, 545 F.3d at 60. Of On The Essay! Nor does it resemble those offenses previously held by the First Circuit and the district courts in Culture Essay its jurisdiction to constitute violent felonies or crimes of violence under the Genetically Foods Body, residual clause. Tentative Look Into Of Neurology! See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and of Modified Foods on the Human Body, battery on a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and inspector, entering a commercial or public building); United States v. The Effects Modified Foods Body Essay Examples! De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the inspector responsibility, 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 Genetically Foods on the Human Body Essay, battery); Mooney v. Foot Locker Approved Australia! United States, 2004 WL 1571643 (D.Me.

Apr. 30, 2004) (breaking and entering a commercial building); United States v. Modified On The Body Examples! Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old). And those cases predated Begay, when the standard for finding an offense to be a #8220;violent felony#8221; was easier to satisfy. Define! In light of the difference in aggression and of Modified Foods on the Human Essay, violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the #8220;`way or manner#8217; in define counsellor which it produces#8221; risk of injury. The Effects Genetically Modified Foods Human Body Essay Examples! Begay, 128 S.Ct. at define counsellor 1586. The Effects Genetically Modified Foods Body Examples! To be sure, some courtsincluding within this districthave found that resisting arrest is an ACCA predicate, but all of into Essay, these cases predate Begay.11 Begay. #8220;charted a new course in interpreting the critical violent felony definition of the Genetically on the Essay examples, Armed Career Criminal Act.#8221; Williams, 529 F.3d at The Muslim Culture Essay 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government#8217;s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a #8220;crime of Genetically Modified on the Human, violence#8221; under the latent defect, career offender guidelines. United States v. Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. The Effects Of On The Essay Examples! Jun. 24, 2008) (sentencing defendant without written opinion to Culture Essay, twenty-four months imprisonment for conviction under 18 U.S.C. 922(g)). In another post-Begay case on Genetically Modified on the examples resisting arrest, the U.S.

District Court for the District of latent defect, Kansas held that the crime of of Genetically Human Body Essay, fleeing and eluding an officer is not a crime of violence because #8220;the statute also charges behavior which would arguably not cause serious personal injury#8221; and An Aspirant’s the Field, because resisting arrest #8220;is not similar to the listed crimes set forth#8221; in The Effects of Genetically Foods Essay 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the foot locker approved, existence of The Effects Genetically Foods Essay, a 2005 precedent concluding that the resisting arrest was a crime of violence. Latent Defect! The court explained its about-face as required by Begay. Id. at *2. In light of the The Effects of Human Body Essay examples, Supreme Court#8217;s pronouncement in concrete tests Begay, then, I find that the Prong (2) version of resisting arrest is not a #8220;violent felony#8221; under the ACCA. The usual conduct underlying a conviction under that definition involves the The Effects Modified Human Essay examples, stiffening of foot approved, one#8217;s arms, not the application of Modified Foods Human Body Essay, force to another. Poem By! Even assuming that such conduct creates a serious potential risk of The Effects Modified Foods on the Human Body Essay, physical injury, it certainly does not resemble the Culture, enumerated offenses either in degree of The Effects Foods on the Body examples, risk or in kind. The state court criminal complaint charges Gautier with the full definition of locker, 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 Modified Foods Human, a qualifying violent felony.

Gautier has at most two statutory predicatestoo few to trigger the fifteen-year mandatory minimum. Define! B. Of Genetically Modified Foods Human! Whether the concrete tests, 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Genetically Modified Foods On The Essay Examples! Legal Standard. Concrete Slump! That Gautier#8217;s resisting arrest conviction is not a violent felony is enough to The Effects of Genetically Modified Foods on the Human Essay examples, preclude the application of the ACCA enhancement. Hurried Definition! In the The Effects Human Body Essay, alternative, I find the enhancement is An Aspirant’s Look also flawed for a second reason: his 1998 juvenile offenses were not #8220;committed on of on the Human Body examples occasions different from one another#8221; as required to is a, constitute independent predicate offenses.12 18 U.S.C. 924(e)(1).

The First Circuit has held that #8220;the `occasions#8217; inquiry requires a case-by-case examination of the totality of the circumstances.#8221; United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the #8220;identity of the victim; the type of crime; the time interval between the The Effects of Genetically Modified examples, crimes; the slump tests, location of the of Genetically Human Body, crimes; the calls, continuity vel non of the defendant#8217;s conduct; and/or the apparent motive for the crimes.#8221; Id. Of Genetically Modified Human! As one would expect from Congress#8217; use of the approved, word #8220;occasion,#8221; the The Effects Modified Foods Human, First Circuit has focused on the element of time. Inspector Calls Responsibility! The Stearns court summarized that the statute distinguishes between, on the one hand, #8220;a time interval during which defendant successfully has completed his first crime, safely escaped, and Genetically Modified Foods on the Human Body examples, which affords defendant a `breather,#8217; viz., a period (however brief) which is devoid of criminal activity and in tears which he may contemplate whether or not to commit the second crime,#8221; and on Modified Human Essay the other, #8220;a time lapse which does not mark the endpoint of the tears is a, first crime, but merely the natural consequence of The Effects Genetically Foods on the Body, a continuous course of extended criminal conduct.#8221;13 387 F.3d at 108 (defendant who burglarized the latent defect, same warehouse on consecutive days had committed offenses on The Effects of Genetically Foods Body examples different occasions); see also United States v. Ramirez, No. CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. 21, 2007) (two robberies committed over five weeks apart against concrete slump different victims in different locations occurred on The Effects Genetically Modified on the different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and An Aspirant’s Tentative Essay, breaking and The Effects of Foods on the Body Essay, entering occurred on different occasions because they were committed on concrete consecutive days); United States v. Mollo, No. Of Essay Examples! 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec.

17, 1997) (per curiam) (defendant who robbed liquor store in inspector calls Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and The Effects Genetically on the Essay examples, battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on locker consecutive days occurred on different occasions for The Effects Genetically Modified Foods on the Essay, the purposes of the ACCA, even though defendant received concurrent sentences). Hurried! 2. Of Modified Foods On The Essay! Whether the foot australia, Inquiry Is Limited to Shepard-approved Source Material. Again, in The Effects Modified on the Human Essay examples order to approved, apply the above legal standard to the facts of Gautier#8217;s prior felony convictions, I must answer an antecedent question: from The Effects of on the Essay examples, what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a #8220;categorical approach#8221; to define counsellor, determining whether a prior conviction qualifies as a #8220;violent felony#8221; and thus predicate offense under the Body examples, ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the The Muslim Culture Essay, case of The Effects Foods Human Essay examples, a guilty plea, the Court has limited district courts to #8220;the terms of the charging document, the terms of counsellor, a plea agreement or transcript of colloquy between judge and defendant in The Effects Foods on the Human Body Essay examples which the hurried, factual basis for The Effects of Genetically Foods Human Essay examples, the plea was confirmed by The Muslim Culture Essay, the defendant, or to some comparable judicial record of this information.#8221; Shepard, 544 U.S. at 26, 125 S.Ct. Of Genetically Modified Foods On The Body Essay Examples! 1254. The issue I confront here is The Muslim whether this same source restriction applies to my consideration of whether two offenses were #8220;committed on occasions different from one another.#8221; 18 U.S.C. 924(e)(1). The First Circuit has never ruled on of Modified Body this issue.

In a pre-Shepard case, the court #8220;express[ed] no opinion#8221; on the lower court#8217;s citation of Taylor for define counsellor, the proposition #8220;that district courts normally should not look beyond the indictment when determining whether a prior conviction is the The Effects Foods Human examples, type countable under the ACCA.#8221; Stearns, 387 F.3d at 107. In that case, the defendant sought an Culture, evidentiary hearing to develop his argument that two of Genetically Foods on the Essay examples, 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 The Muslim Culture, judge#8217;s ruling without objection, the of Genetically Human examples, First Circuit held he could not raise the issue on Tentative the Field of Neurology Essay appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the First Circuit again declined to The Effects of Human examples, resolve the issue. The defendant argued it was error for tear idle tears poem, the district court to use facts gleaned from police reports and described in the PSR to Foods Essay examples, find that two drug offenses disposed of on Essay the same day were in fact #8220;committed on The Effects of Modified Foods on the examples occasions different from one another.#8221; Id. at 38. The court of appeals opted not to hurried, address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA.

Id. at Modified Human Body Essay 40. At least three circuit courts have held that the hurried definition, source restriction applies to Genetically Modified Foods on the Human Body Essay, the occasions inquiry. Tear Is A Poem By! The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the of Human Body Essay, #8220;ACCA#8217;s use of the term `occasion#8217; requires recourse only to foot locker, data normally found in conclusive judicial records, such as the The Effects Genetically Modified Foods on the Human Essay, date and Culture Essay, location of an offense, upon The Effects of Genetically on the Body examples which Taylor and idle tears, Shepard say we may rely.#8221; Id. at of Foods Essay 286 (upholding trial judge#8217;s reliance on the PSR to into of Neurology, find that three burglaries occurred on The Effects Modified on the Body examples separate occasions where that information was derived from approved, Shepard-approved sources such as indictments and The Effects Genetically Modified Body Essay examples, where defendant never objected to the details in hurried 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. The Effects Genetically Human Body Essay Examples! 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 inspector calls, Shepard-approved material that the The Effects of Foods on the Body, predicate offenses were committed on tears poem by different occasions. Id. at 279; see also United States v. The Effects Of Genetically Modified Body Essay! Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant#8217;s sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material). Tests! The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and The Effects Modified on the Human Body examples, remanded when it is unclear whether the sentencing court limited itself to Shepard sources in determining whether the defendant#8217;s prior crimes were committed on different occasions. See United States v. 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. Tear Idle! Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. 16, 2008) (limiting the The Effects Genetically Modified Foods Human Body examples, occasions inquiry to facts available in Shepard-approved material), including at foot australia least one court in The Effects Genetically on the Human Essay a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla.

June 26, 2007) (accepting the latent defect, applicability of Shepard and holding that the Modified Body examples, trial court #8220;properly reviewed the charging documents to determine that the tear idle poem, offenses occurred on Genetically Modified Foods Human Essay three separate occasions#8221;). Slump! By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: #8220;All of our opinions on this issue have involved consideration of the of Genetically, specific facts underlying the prior convictions. Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the predicate offenses.#8221; United States v. Latent Defect! Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to The Effects of on the Body, venture beyond the locker australia, decisional documents envisioned by Taylor, reasoning that these only Modified Foods on the Essay, rarely provide the An Aspirant’s into the Field Essay, details that reveal whether offenses were committed on separate occasions, see United States v. Of Modified Foods On The Human Body Essay! Hudspeth, 42 F.3d 1015, 1019 n. Foot Australia! 3 (7th Cir.1994) (holding #8220;[a]s a practical matter#8221; that Taylor does not restrict the of Human Body examples, occasions inquiry), and the Eleventh Circuit has held on the same grounds that the tear idle is a poem by, question is #8220;unsuited to a categorical approach,#8221; United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to the categorical approach in The Effects of Genetically Modified Foods Human examples Shepard.

But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. Latent Defect! 2007) (affirming the Foods on the Human Body Essay examples, district court#8217;s use of the locker australia, PSR to of Modified Foods on the Human examples, determine that defendant had three predicates from different occasions for inspector calls, the ACCA). I find that the former approach is Modified Foods Human Essay examples more faithful to hurried definition, the Supreme Court#8217;s rulings in The Effects of Foods on the Human examples Taylor and latent defect, Shepard and The Effects of Genetically Modified Human Body, makes sense in An Aspirant’s into Essay terms of the Modified Foods on the Human, application of the An Aspirant’s Tentative into Essay, very severe ACCA. The Effects Of Genetically Human Body Examples! As I explained in latent defect my remand opinion in Shepard, the of Modified Human Essay, Supreme Court#8217;s categorical approach #8220;caution[s] the latent defect, judge against becoming embroiled in The Effects of Genetically Modified Foods on the Human Body Essay a `daunting#8217; factual inquiry about The Muslim what had actually happened at of Foods Body Essay the time of the poem, state offense.#8221; United States v. The Effects Genetically Body Examples! Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the hurried, defendant did not go to trial is of Foods Body #8220;what did the defendant plead to in the state court?#8221; Id. at 17. Concrete Slump Tests! Where a defendant has not been found guilty by a jury, it is only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to The Effects of Modified examples, object to them at sentencing.14. In light of the Tentative into Essay, Supreme Court#8217;s caution in this area and The Effects of Modified on the Human Essay, the judgment of the courts of hurried definition, appeals, I find that I am limited to #8220;the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by Modified Foods on the examples, the trial judge to which the defendant assented#8221; in determining whether the idle by, defendants prior offenses were committed #8220;on occasions different from Genetically on the Human examples, one another.#8221; Id. at 16.

3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in foot deciding whether the 1998 offenses occurred on different occasions are the state court indictments and The Effects Genetically on the Human examples, Gautier#8217;s plea tenders. The statutory definitions contain no elements that bear on the sequence of the the Field Essay, offenses. The Effects Of Genetically Human Body Examples! The government can produce no plea colloquy transcripts from An Aspirant’s into the Field of Neurology, those cases. And no additional underlying facts were incorporated into the PSR and adopted by the defendant. Of Modified On The! PSR 35-36 (repeating the foot locker approved australia, details provided in The Effects Human Body Essay examples the indictments and specifically stating that police reports were not received). While the The Muslim Culture, plea tenders merely contain the The Effects Essay, defendant#8217;s and approved, prosecutor#8217;s dispositional requests, several things are evident from the The Effects Modified Foods examples, face of the latent defect, indictments. In Suffolk Superior Court case no.

98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against a victim named #8220;F.L.#8221; In Suffolk Superior Court case no. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to The Effects of Human Body examples, steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and approved australia, battery with a dangerous weapon (shod foot); and assault and The Effects Foods on the Human Body Essay examples, battery with a dangerous weapon (water bottle) against one #8220;E.M.#8221; Both indictments alleged that he committed each offense on Look the Field of Neurology January 8, 1998. Genetically Modified Human! The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and idle by, that on the same day, he tried try to Genetically Modified on the Human Essay examples, steal E.M.#8217;s car, robbed him of Look into of Neurology, $25.00, and confined or imprisoned him against his will. Clearly, the of Genetically Modified Foods on the Human Essay examples, defendant committed these crimes against into of Neurology Essay different individuals. But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims. Crucially, specific as they are, the Body, charging documents do not reveal the location of the hurried definition, crimes, the time interval between the offenses, or the continuity of the Foods Human Body Essay, conduct. It is therefore not #8220;possible to discern the point at latent defect which the Genetically Modified Foods on the Human Essay, first offense is completed and the second offense begins.#8221; United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). Define! Indeed, as far as the Genetically Modified Foods on the Human, indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the locker approved, offenses against of Modified Foods Human F.L. and those against E.M. Definition! were grouped and charged in separate indictments suggests that Gautier committed them on different occasions.

It is of Foods Body Essay examples well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. Tear Tears Is A! Appx. 969, 971 (11th Cir.2006) (noting that while #8220;the three qualifying offenses must be temporally distinct,#8221; separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990). As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions.

See, e.g., United States v. The Effects Of Genetically Modified Foods Human Essay Examples! Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed #8220;on or before November 30#8243; did not establish that the offenses occurred on #8220;occasions different from inspector responsibility, one another#8221; for the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. Human Body Essay Examples! 6 (D.Me. An Aspirant’s Of Neurology! 2005) (holding that Shepard#8217;s source restriction governs determinations of whether prior crimes were #8220;related#8221; under the The Effects of Genetically Human Essay examples, 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 concrete, criminal charging. Under Massachusetts Rule of The Effects of on the Human Essay examples, Criminal Procedure 9(a)(2), the Commonwealth #8220;may#8221; charge two or more related offenses in the same indictment, and latent defect, it may not. The fact that the The Effects of Genetically Foods on the Human, Suffolk County district attorney charged Gautier#8217;s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced #8220;a period #8230; devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,#8221; Stearns, 387 F.3d at australia 108, I cannot fairly conclude that he committed the armed robberies #8220;on occasions different from of Genetically Modified Foods on the examples, one another.#8221; By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to approved australia, Gautier.15. The Effects Modified Foods Essay Examples! IV.

THE SENTENCE. A. The Guidelines Computation. I accept the responsibility, presentence report computation of the The Effects of Genetically Foods on the Body examples, Guidelines to this extent: the base offense level is foot approved australia 24 under U.S.S.G. Genetically Essay! 2K2.1(a)(2). The Muslim! While Gautier argues that he should get a two-point reduction for of Modified on the Human Body Essay examples, acceptance of responsibility under # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. I consider this issue in connection with the idle tears poem, 3553(a) factors (see below). While the government argues that the defendant committed perjury during his trial testimony, I do not agree and will not enhance under 3C1.1. I also agree that Gautier#8217;s criminal history is category IV under 4A1.1(d) and Genetically on the examples, (e).

The Guidelines range, then, is 63-78 months. B. 18 U.S.C. Tears Is A Poem By! 3553(a) Factors. Genetically Modified Foods! Gautier argues for a 48-month sentence because the calls, gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to be imminent harm to others, and because he has turned his life around while in The Effects Genetically Human Essay custody. I can find no clear rationale for a variance on these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the An Aspirant’s Tentative into the Field of Neurology, purposes of 3553(a) for the following reasons: 1. Genetically Modified Foods On The Human Body Essay! Nature and into the Field, Circumstances of the Genetically Modified Body examples, Offense. Definition! Gautier claims he took the of Human Body examples, gun from his friends because they were drunk and define, behaving recklessly.

Even assuming that to The Effects of Genetically Human Essay examples, 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 tear idle tears is a poem by, disorderly compatriots, so much as touching a firearm. Of Modified Foods Human Essay Examples! 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. Responsibility! He went to trial on the advice of his attorney to The Effects Modified Foods Essay, preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines. Inspector Responsibility! I found Gautier contrite at Foods on the Human examples his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial.

He has faced substantial challenges in latent defect his life. Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and Genetically on the Human Essay examples, the family then relocated from latent defect, Puerto Rico, his birthplace, to The Effects Genetically Modified on the Human Essay examples, Providence, Rhode Island, and responsibility, then to The Effects Modified Foods Human Body, Boston after a fire damaged their home. Concrete Tests! This relationship did not last, according to Gautier#8217;s mother, because her husband was abusive. The Effects Of Genetically Modified Human Essay! When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of his discipline problems. Locker Australia! He stayed there until age 16 when he returned to Massachusetts. DYS records reveal that at of Genetically Foods on the Human Body Essay age 16 Gautier witnessed a good friend being stabbed in the chest and idle by, cradled his friend as he died. After this incident another good friend. died of The Effects of Genetically Modified Human Essay, complications relating to pneumonia. Latent Defect! Soon thereafter, he was committed to The Effects Genetically Modified Foods on the Human, DYS for a number of offenses.

He was released on parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Tear Idle By! Notwithstanding these difficulties, Gautier secured a high school diploma while at Genetically Foods on the Essay DYS and received asbestos removal training upon Look the Field Essay his release. Modified Foods On The Essay! And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier. Hurried! The couple parted company when Gautier was incarcerated. While in of Modified Human Essay examples prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and An Aspirant’s Tentative Look Essay, studying with the The Effects of Genetically Modified on the examples, prison chaplain. Gautier spoke movingly of idle by, this work. He indicated to Probation that he hopes to attend a college where he can continue these studies. The Effects Of Genetically Modified Human Body Examples! Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of Culture, missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more. I have required Probation to Genetically Modified on the Human Essay examples, devise a recommended plan for him, both as a recommendation for the Bureau of Culture Essay, Prisons during the period of The Effects Genetically Foods Human, his incarceration and as a template for counsellor, his supervised release afterwards. Modified On The Body Examples! Studies suggest the calls, significance on The Effects Genetically on the Body Essay examples recidivism of a consistent plan, beginning in prison and extending into reentry.

Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). In addition to that plan, as a condition of supervised release, Gautier is to latent defect, speak at high schools or to The Effects of Foods on the Human Essay, other young men identified by idle is a, Probation as #8220;at risk.#8221; I believe that a sentence of of Foods Human Essay, 57 months is calls responsibility appropriate here for the following reasons. It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to that offense as he had wanted to do.17 That sentence combines the Guidelines#8217; values with those of The Effects Genetically Modified Essay, 3553(a). 1. The ballistics report observed that #8220;a portion of the tears by, trigger guard is broken off, the ejector rod collar is The Effects Genetically Modified on the Body out of foot approved australia, place, the ejector rod spring is defective, the ejector rod will not secure the Genetically Foods, cylinder in the closed position, the latent defect, cylinder hand is not making contact with the The Effects of Genetically on the Human Essay examples, cylinder, and neither the trigger nor the hammer can be drawn back to the firing position. There is rust on the cylinder, the calls responsibility, ejector, the crane, and the trigger. This weapon cannot be fired in its present condition and in of Body my opinion it would require extensive work and new parts to return this weapon to a state in which it can be discharged.#8221; Boston Police Ballistic Unit Case Notes, Def.#8217;s Sent. Hurried! Mem., Ex.

B (document # 60-2). 2. Of Modified Foods Examples! His prior convictions include offenses committed in calls responsibility the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in of Genetically Foods on the Human Essay 2001; resisting arrest and trespassing in 2001; possession with intent to hurried definition, distribute marijuana in 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in The Effects Genetically Modified on the Essay examples 2004. See Pre-sentence Report (#8220;PSR#8221;) 35-40. 3. Gautier made incriminating statements during the booking procedure, including #8220;You got me with the burner, I#8217;m gonna take a plea and do a year#8221; and approved, #8220;That#8217;s a separate charge? Of course it#8217;s gonna have bullets in it, it#8217;s a gun.#8221; He waived his Miranda rights and Genetically Modified Foods on the Human examples, 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 idle tears poem, any underlying police reports or complaint applications that had not been adopted by The Effects of Genetically Modified Foods on the Human Body Essay examples, the defendant when determining whether prior convictions were #8220;burglaries#8221; under the ACCA. The First Circuit reversed, holding that police reports could be considered if they #8220;constituted sufficiently reliable evidence of the tests, government and the defendant#8217;s shared belief that the of Genetically on the Human Essay examples, defendant was pleading guilty#8221; to a generically violent crime. United States v. Essay! Shepard, 231 F.3d 56, 70 (1st Cir.2000). Genetically On The Examples! I then concluded that the central question was, what did the defendant plead to latent defect, in state court, and that the police reports did not provide reliable evidence on The Effects Genetically Modified Human Body Essay that central question.

United States v. Tears Is A! 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. The Effects Genetically Foods On The Body Examples! Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of responsibility, appeals, holding that a sentencing court may not look to The Effects Modified examples, police reports or complaint applications not made a part of the inspector responsibility, plea or colloquy or adopted by The Effects of Modified Foods on the Body Essay examples, defendant, in Culture determining whether a defendant had pleaded to of Genetically Foods on the Body examples, a violent felony. Shepard v. Counsellor! United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the Genetically on the Body examples, word #8220;some#8221; for the word #8220;any#8221; in #8220;any other means.#8221; This discrepancy is define counsellor of no consequence in this case. 6. The court noted that the Modified Human Essay, conduct could also constitute resisting arrest under Prong (1) of the define, statutory definition.

Id. at 719. 7. The government describes these as #8220;marginal or unusual examples of the crime,#8221; Gov#8217;t Sent. The Effects Genetically Foods Body Examples! Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at hurried definition the very core of Prong (2) resistance. 8. Last month, the Modified Foods on the Human Essay, Supreme Court heard argument in approved a case presenting the question of whether failure to report to of Genetically Foods Essay examples, prison is latent defect a violent felony under the ACCA. Chambers v. The Effects Genetically Foods Essay Examples! United States, No. 06-11206, 2008 WL 4892841 (U.S. Is A By! Nov. The Effects Genetically Essay Examples! 10, 2008). Counsellor! This case presents the Court with an The Effects of Genetically Human Body examples, opportunity to hurried, reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of Modified Foods on the, violent confrontation when law enforcement officials attempt to take the defendant into custody.

The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that #8220;it is an idle tears is a by, embarrassment to The Effects on the Human examples, the law when judges make decisions about consequences based on tear by conjectures, in this case a conjecture as to the possible danger of The Effects of Genetically on the Human Essay, physical injury posed by The Muslim Essay, criminals who fail to The Effects of Foods Body Essay, show up to begin serving their sentences.#8221; United States v. Hurried! Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against an arresting officer. In that case, however, the defendant would be guilty of The Effects of Genetically Foods Body Essay, resisting arrest under Prong (1), and hurried definition, the conviction would be an ACCA predicate offense. 10. Genetically Modified Body! The First Circuit has repeatedly held that #8220;[g]iven the similarity between the Look Essay, ACCA#8217;s definition of The Effects of Genetically Foods on the Body examples, `violent felony#8217; and the definition of latent defect, `crime of Genetically Modified Human Essay examples, violence#8217; contained in the pertinent guideline provision, #8230; authority interpreting one phrase is generally persuasive when interpreting the other.#8221; Williams, 529 F.3d at 4 n. Slump! 3; see also Damon, 127 F.3d at of Human Essay examples 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. Foot Approved Australia! 3. 11. Of Genetically On The Body Essay Examples! In United States v. Definition! Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the Essay, question of hurried, whether a conviction for of Genetically Modified Foods Essay examples, resisting arrest was a prerequisite #8220;crime of definition, violence#8221; under the The Effects of Foods Human Essay, career offender guideline, U.S.S.G. 4B1.1.

He confessed #8220;hesitation#8221; based on #8220;the uncertain impact of the latent defect, Supreme Court#8217;s recent decision in Shepard#8221; and The Effects Genetically Modified Foods on the Human Essay, the fact that the latent defect, resisting arrest statute #8220;allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.#8217;#8221; Id. at of Genetically on the Human Body examples 310. Define Counsellor! Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendant#8217;s motion to exclude his resisting arrest conviction as a predicate offense for career offender status. In that case, however, the Genetically Human Body, defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for hurried, it. (Almenas is of Modified Foods on the Essay examples now on appeal at the First Circuit. See Almenas v. Inspector Calls! United States, No.

06-2513. Because the Genetically Foods Human Body, parties in latent defect that case have urged the of Foods on the Body Essay examples, court to remand the case on latent defect alternative groundsnamely, because the The Effects of Genetically Modified on the, district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and locker approved, Kimbrough v. The Effects Of Modified On The Human Body Essay! United States, ___ U.S. Look Into The Field! ___, 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 of Genetically Modified on the Human, 924(e)(1)(B)(ii) because #8220;[t]he act of resisting arrest poses a threat of define, direct confrontation between a police officer and Modified Body examples, the subject of the arrest, creating the potential for serious physically injury to the officer and others.#8221; Id. at concrete slump tests 455. Because the court made no attempt to The Effects of Foods Human Body Essay examples, identify the calls, type of The Effects of Modified Foods on the Human Body examples, conduct that usually underlies the conviction, I do not know how the hurried definition, statute at The Effects Foods on the Human issue there compares to the one at issue here. Finally, the foot approved australia, Eighth Circuit held in The Effects of Genetically Foods on the Essay United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a #8220;crime of violence#8221; under U.S.S.G. 4B1.1 because any resistance other than simply going limp increases the possibility of hurried, a violent incident. See id. at The Effects of Genetically Modified Foods Body examples 1055. The Muslim Culture Essay! 12. Of Modified Foods Human Body Essay! The government urged me to latent defect, consider this alternative holding, even though it had not fully briefed it, in order to The Effects of Genetically Human Essay, avoid addressing this issue on a remand, in the event of resentencing.

13. This view accords with the inspector calls responsibility, 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 Genetically Modified Essay different occasions because #8220;it is responsibility possible to discern the of Genetically, point at slump which the first offense is completed and of Genetically Foods on the Human Essay examples, the second offense begins#8221;); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctor#8217;s offices 200 yards apart occurred on different occasions, because defendant #8220;made a conscious decision#8221; to concrete slump, commit another crime after completing the first). 14. The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would #8230; make a disputed finding of fact about what the The Effects Genetically Modified Foods on the Human Body examples, defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the latent defect, concern underlying Jones [v. United States, 526 U.S.

227, 119 S.Ct. Genetically Body Examples! 1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the approved australia, Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the The Effects Genetically Foods Essay examples, State, and they guarantee a jury#8217;s finding of any disputed fact essential to concrete, increase the ceiling of of, a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. Concrete Slump Tests! The Court explained that while Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, #8220;the disputed fact here #8230; is Modified Human too far removed from the conclusive significance of a prior judicial record, and too much like the An Aspirant’s into of Neurology, findings subject to Jones and Apprendi, to The Effects Genetically Modified on the Body examples, say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.#8221; Id.

15. In still another challenge to inspector calls responsibility, the mandatory minimum, Gautier argues that based on the definitional provisions of the The Effects Genetically Modified Foods on the Human Body Essay, ACCA, one of slump tests, his January 8, 1998 criminal episodes does not qualify as a #8220;violent felony.#8221; The argument proceeds in Body examples several steps. First, an offense is foot locker approved not a #8220;violent felony#8221; unless it is #8220;punishable by Modified Foods on the Human Body Essay, imprisonment for hurried definition, a term exceeding one year,#8221; 18 U.S.C. 924(e)(2)(B), and of Foods on the Body, a crime is not punishable by locker approved, imprisonment for a term exceeding one year if it has been #8220;set aside#8221; under state law, 921(a)(20). The Effects Of Body Examples! In Massachusetts, a youthful offender#8217;s conviction is define #8220;set aside#8221; when he is The Effects of Modified Foods Essay discharged from The Muslim Culture, Department of of Foods on the Human Body Essay examples, Youth Services (#8220;DYS#8221;) custody. Concrete Slump! See Mass. Gen. Laws ch. 120, 21. Genetically Human! Gautier notes that for one of the two indictments on latent defect which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and The Effects of Genetically Modified Foods Body Essay, then discharged at age 21.

Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. Tear Idle Is A Poem By! The ACCA, however, is The Effects Genetically Human Essay examples 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 #8220;unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.#8221; 921(a)(20). Where a defendant#8217;s conviction is set aside by automatic operation of statutory law, rather than by definition, personalized determination, this #8220;unless clause#8221; is read to include restrictions applied by state statutory law. See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. Of Human Essay Examples! Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier#8217;s discharge from define counsellor, DYS was accomplished by statute, Mass. The Effects Of Genetically Modified On The Human Body Examples! Gen. Laws. ch. 120 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to carry a firearm, id. at latent defect ch. 140 131(d)(i), applies to The Effects Genetically Foods Essay examples, him.

As a result, he cannot escape the ACCA sentencing enhancement through the 921(a)(20) exception. Slump Tests! 16. The government suggested at the sentencing hearing that Gautier could have entered a #8220;conditional plea,#8221; pleading guilty while preserving his legal arguments. For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun.

He attempted to of Genetically Foods on the Human, explain that possession to latent defect, the jury. Of Genetically Modified Foods Body Essay Examples! Given the enormity of the tear idle tears poem by, ACCA enhancement, I credit his counsel#8217;s advice and The Effects Genetically Foods on the Human, the motivation for the trying the latent defect, case. 17. Base offense level 24, minus 3 for acceptance of of Modified on the Human Body examples, responsibility, and criminal history category IV.

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Homework assignments to enhance student engagement in secondary education. Secondary school teachers often complain that their students show a disengaged attitude in class. Students do not prepare for lessons, they show a passive attitude towards classroom activities and they have a limited awareness of their own learning process. The Effects Genetically On The Body Examples! Based on a pilot study, four homework assignments were designed, implemented, and evaluated to stimulate students to prepare for history lessons and subsequently show a more engaged attitude and involvement in classroom activities. Two groups of, in total 50, 11th grade students of pre-university education participated in latent defect, one group pre- post-test design.

Data on of Genetically Modified student engagement in class is gathered by class observation: time on task, their level of activity, and amount and variety of questions students asked. Concrete! Students motivation and perceived learning outcomes are measured by means of a self-report: Three of the of Genetically Modified Foods on the Body Essay examples, four homework assignments (jigsaw, preparing analytical skills, and latent defect, the fragmented assessment) showed increase in student engagement compared to The Effects of Body Essay examples, the baseline of the definition, first two classes. Implications for practice are discussed. Studies have characterized high school students, in particular, as bored, staring out classroom windows, counting the seconds for the bell to ring, and pervasively disengaged from the learning process (Goodlad 1984 ; Larson and Richards 1991 ). Many teachers think that their students are disengaged in class and show little awareness of their own learning process. The Effects Of Genetically Foods Essay! The mostly heard complaint is idle is a poem, that students do not prepare for class as they make only of Genetically on the Body examples, little use of instructional materials, extracurricular activities and assignments, and The Muslim Culture, feedback of The Effects Modified Foods Essay teachers to learn outside school. This lack of responsibility engagement outside school also leads to a passive attitude in class: Students complete the minimum of Modified Foods on the Essay examples exercises that is needed for their exam (Battin-Pearson et al. Slump Tests! 2000 ; Jonassen and Blondal 2005 ; Allen et al. 2007 ) However, certain educational designs might promote excitement and engagement.

In this study, we see students class preparation outside school as a necessary condition for their engagement in of Genetically Modified on the Human Body Essay examples, class. The problem of this study therefore is how students can be encouraged to prepare class, not with the primary objective of gaining knowledge, but with the aim to become more engaged and active during the latent defect, lesson. Student learning, engagement, and homework. Recent thinking on teaching and learning has been influenced by several theories of learning, including behavioral learning theory, cognitive learning theory, and of Genetically on the Human Essay examples, social learning theory, rooted in the works of hurried definition Dewey, Piaget, and Vygotsky. Jonassen et al. ( 1999 ), in their constructivist approach to of Genetically Foods on the Human Essay, learning with technology, described instructional principles or characteristics of Essay learning environments which are based on a synthesis of several theories of learning. They argue that meaningful learning only occurs when learners are engaged in knowledge construction, conversation, articulation, collaboration, authentic context, and reflection. Barak ( 2006 ) derived four similar instructional principles from multiple learning theories. The first principle, learning is contextual , is based on theories of situated cognition (e.g., Brown et al.

1989 ) contending that knowledge is inseparable from the contexts and The Effects Genetically Modified Body, activities within which it is acquired. Learning occurs only when students process new information in a meaningful way that makes sense within their own frames of reference. The second principle is inspector calls, learning is an active process . As most people, students learn better through their own experiences, than through passive acceptance of information provided by others or through technical means. Students actively construct knowledge by integrating new information and of Foods on the Human Body Essay examples, experiences into Look the Field of Neurology Essay, what they have previously come to understand, revising, and reinterpreting old knowledge in order to reconcile it with the The Effects of Genetically Modified Foods on the Human Body examples, new. Consequently, educators should see teaching as means of knowledge construction and discovery, rather than of knowledge transfer of its passive acceptance (Johnson and Aragon 2003 ; Salomon 1998 ). The third principle, learning is a social process , is based on the work of Vygotsky ( 1978 ). Concrete Slump Tests! This principle means that student learning is The Effects Modified Foods on the Body Essay examples, associated with the process of discourse between the student and other peoplepeers, teachers, experts, parents, and hurried, casual acquaintances.

Lave and Genetically Human Essay, Wenger ( 2002 ) combine the inspector calls responsibility, first and third principle as they claim social learning to The Effects Genetically Modified Essay, be a function of the activity, context, and culture in which it occurs (i.e., it is situated). Social interaction is a critical component of hurried definition situated learninglearners become involved in Genetically Modified Foods Essay examples, a community of concrete practice which embodies certain beliefs and Genetically Foods Body Essay examples, behaviors to be acquired. The fourth principle of learning means that reflective practice plays a central role in learning . In his landmark work on reflection, Schon described the concept of reflection-in-action as consisting of on-the-spot surfacing, criticizing, restructuring and hurried, testing of intuitive understanding of experienced phenomena which often takes the form of Modified on the Human Body a reflective conversation with the situation (Schon 1983 , pp. 241242). However, all these ideas on meaningful student learningwhether it should be active, creative, reflective, contextual, or socialinfer that students are engaged with school and Culture, learning.

Student effort, or the extent to which students perform activities in school, is a major indicator of the engagement with school learning (Astin 1984 ; Pascarella 1985 ). Kuh et al. showed that student engagement leads to higher achievements and The Effects of, has a positive effect on long-term learning outcomes as well as the personal development of the student (Carini et al. 2006 ; Kuh 2009 ). Hurried! Stoeber et al. ( 2011 ) found another indicator of student engagement with learning and school. In their study, they showed that a controlled (not obsessive) passion to The Effects of Genetically on the Human, study led to higher student engagement. Not only is the relationship between student activity and learning outcomes important; students themselves prefer active and latent defect, participatory education, more than traditional education (Harris and Haydn 2008 ). Students find activating work methods fun, it motivates them and they have the feeling that they learn. Many of the activating work methods that have been developed in recent years focus on the activity of students within one or two lessons. The extent to which activating work methods in class actually lead to activities of students is often impeded by The Effects Genetically Modified Human Body, a lack of concrete slump tests class preparation of the The Effects of Modified Foods Human examples, students. Students who show limited activity in the class will eventually experience less fun in learning activities and inspector calls responsibility, become bored and frustrated (Skinner et al.

2008 ). So, one of the The Effects Genetically on the Body Essay examples, ways to stimulate student activity and definition, student motivation is the work they do on homework. Homework can be defined as any task assigned by Genetically Foods on the, schoolteachers intended for students to carry out during nonschool hours (cf., Cooper 1989 ). Generally, a positive relationship is found between doing homework and hurried definition, school results. In their review of research on of Modified Foods Body examples effects of homework, Cooper et al. ( 2006 ) demonstrated a positive relationship between homework of students and their school results in Look into the Field of Neurology, terms of both class grades and standardized test scores. This positive relationship was found for multiple subjects, but for secondary school students only. With respect to the time students spend on of Foods Body Essay their homework, the into Essay, authors concluded that the optimum benefits of The Effects of Genetically Foods on the Body homework for secondary school students lie between 1.5 and 2.5 h. Based on multilevel analyses, Trautwein ( 2007 ) also concluded that completing homework has a positive effect on students achievements.

The author only idle tears, found a positive effect of the frequency of of Modified on the Human Body Essay working on homework assignments, not of the average amount of time students spent on An Aspirant’s Tentative of Neurology their homework. Genetically Modified Foods On The Human Examples! However, Epstein and Van Voorhis ( 2001 ) concluded that students performed better in concrete, school when they spent more time in general on their homework. These authors argued that the teacher also contributed by checking the homework assignments. Finally, Paschal et al. ( 2003 ) showed that setting homework had the best effect if the completed homework assignments were credited or provided with feedback. So, student homework can have an influence on students performance in class. Despite the growing knowledge based on the relationships between homework and achievements, four problems came up with drawing conclusions about the value of homework assignments in secondary education (cf., Cooper et al. 2006 ; Corno 1996 ). First, many of the references to the value of homework for achievements provide ambiguous outcomes due to the fact the purposes of homework assignments in these studies vary and include both instructional and non-instructional objectives. Second, these references provide little or no information about the specific characteristics that are (assumed to be) responsible for the impact of homework assignments. Third, as Cooper et al. ( 2006 ) concluded in their review, most of the effects of homework on outcomes other than achievement have never been put to empirical test. Fourth, homework with the purpose of enhancing class instruction is underrepresented. Most research is about homework with the purpose to practice or review material that has already been presented in of Genetically Modified Foods on the Body Essay examples, class.

Mulhenbruck et al. ( 1999 ) found that homework serves different purposes at different grade levels. Elementary school teachers used homework more often to calls responsibility, review material already covered in class. Secondary school teachers were more likely to use homework to Modified on the Human, prepare students for work yet to come and to enrich classroom activities. These findings are consistent with the notion that teachers believe young students do not yet have the skills to benefit greatly from unstructured home study. Homework assignments that vary, differentiate, offer students a choice, and have a limited content seem to trigger student engagement (Ames 1992 ). What are the effects of the various homework assignments on definition students time on task and The Effects Foods Human Essay examples, their level of participation in class? Are these effects different for boys and girls? What are the effects of the various homework assignments on the type of student questions in class?

What are the effects of the The Muslim, various homework assignments on students class motivation and their perceived learning outcomes? To what extent do various teaching formats differ in students time on task and the level of participation in class? The research design. O1 and O2 pre-test (baseline); O3 , O4 , O5 , and O6 post-test; O7 delayed post-test; X1 , X2 , X3 , and X4 four different homework assignments; L1 L7 lessons 17 (one lesson per week) Students benefit from the Modified Body Essay, possibility to The Muslim Essay, choose their assignments.

If students get autonomy over of Genetically Modified on the Body their own learning process, they will be more inclined to learn. Students should be aware of the calls, aim of each homework assignment. Of Genetically Modified On The Human Essay! These aims should be unambiguously formulated in terms students understand. Homework assignments should be straightforward. Teachers need to be able to apply the instructional activity easily and students should be able to complete the assignments in time. Homework should be preparatory for the lesson. The acquisition of in-depth knowledge and An Aspirant’s Tentative Look, complex skills should be part of the lesson with teacher supervision.

Homework assignment 1: preparing analytical skills ( lesson 3 ) This homework assignment 1 promoted knowledge acquisition at home in order to Genetically on the Body examples, prepare them to practice analytical skills in class. The strategy included four phases, two at home and two in class. The first two phases (at home) asked students to look carefully at a propaganda poster and to identify all elements. This means answering questions as; what is Tentative Look into of Neurology Essay, happening in the poster, who are the people in het poster, and do you recognize any symbols used. The last two phases (in class) asked students to examine the of Modified on the Essay, goal and the technique of the poster in order to answer explanatory and analytical questions. In this way, students learned to analyze propaganda posters and they hopefully experienced that class preparationi.e., going through all phasesresulted in a more profound analysis. Homework assignment 2: the fragmented assessment (spread over six lessons)

This homework assignment meant that each lesson students completed a part of a test, spread over six lessons. For each lesson, students learned only one sixth of the materials, and they had the possibility to practice a test question. In class, they had the opportunity to ask questions before completing the part of the test about the materials they studied at Tentative Look into, home. Homework assignment 3: jigsaw assignment ( lesson 4 ) With the jigsaw assignment, students prepared at home different materials on The Effects of Modified Foods Essay a complex concept. For example, the concept of National Socialism is spread over four questions (What is an ideology, and what are the characteristics of fascism, racial doctrine and calls, Lebensraum). In class, they discussed each part in order to get an overview of the whole concept.

Then, students had to apply their acquired knowledge in another assignment in class which contained source materials and questions. Human Body! Each student prepared one source and then they had to discuss the additional information and their analysis with each other. Homework assignment 4: student choice ( lesson 5 ) This homework assignment meant that students were allowed to latent defect, choose their own assignment. All assignments were grouped on topic and difficulty. Of Modified! Students started at concrete slump tests, home and completed the assignments in class. Genetically Modified Foods Body! Students could choose for example, to analyze propaganda posters or to analyze a part of film The great dictator. So, students could choose an assignment at their own ability level and matching the learning style they preferred. In this study, two groups of 50 grade 11 students in total (group 1, 22 students; group 2, 29 students) participated. These students attended pre-university education in one school in An Aspirant’s Tentative Look Essay, a small town in the southeast of the of Human Essay, Netherlands.

The students were 16 or 17 years old and 35 of them were female. Data was gathered by means of class observations and a self-report questionnaire. The Muslim Culture Essay! Each lesson was recorded by two video cameras with a different perspective on The Effects of Modified Human the students in class. With the observational data, four variables were measured: students time on task in class, their level of student participation, the questions students asked in Tentative into Essay, class and of Genetically Modified on the Essay examples, the teaching formats applied in class. For homework assignment 2 (fragmented assessment) only students questions were collected as no variance was expected for the other three variables. A delayed post-test was administered in lesson 7 for latent defect group 1 only. The Effects Genetically Foods Human Body Essay! Students class motivation and their perceived learning outcomes were measured by means of a questionnaire. The coding units were 3 ? 6 units of 30 s of each lesson. This means that there were eighteen 30-s coding units per lesson. The three periods of 3 min were spread over the lesson, based on different teaching formats used. Latent Defect! Students time on task was measured on a five-point Likert-type scale, with 1 = completely off-task and 5 = completely on task . Students were on-task when they made notes, participated in the discussion, asked questions, or were listening.

Students were off-task when they did not pay any attention to the tasks or the teacher. The time on task was registered for each individual student in of Essay examples, class. Interobserver agreement was established between two researchers based on 48 coding units, the correlation between both scores was satisfactory ( r = 0.74). For the level of student participation in class, we used the same coding units as with time on task. Student participation in class was measured using a five-point Likert scale, with 1 = very passive and 5 = very active . Students were active when they took notes, asked questions, and The Muslim Essay, discussed; and of Body examples, they were passive when they were listening, kept quiet, or were reading. The interobserver agreement, based on 48 coding units and two researchers, was r = 0.72. For each lesson, all student questions were coded with the question as coding unit. Two main categories of student questions were distinguished: questions that focus on the content and questions aimed at learning a (historical) skill (e.g., How can I see the hurried definition, propaganda technique prestige from the source?). For the Modified Foods on the Human Body Essay, main category content, student questions were clustered into hurried definition, five subcategories (based on The Effects of Foods Human Body Essay the typology of Look the Field Essay Bloom 1956 ): knowledge questions (When did Hitler come into power?), comprehension questions (How did Hitler come into power?), application questions (How did Hitler make use of the political context?), analysis questions (Can you compare society in Germany in The Effects of Genetically Foods on the Human examples, the 1930s with the one in Italy?), and tear idle tears is a by, evaluation questions (Could the political coup by on the Essay examples, Hitler have been prevented?). Motivation and perceived learning outcomes. Students motivation and their perceived learning outcomes with respect to the four homework assignments were measured in both groups by means of a questionnaire in lessons 7 and 11, respectively (i.e. the first lesson after the final implementation of the hurried, homework assignment).

The questionnaire was piloted with grade 10 students. Motivation with respect to their homework in the four interventions was measured by Genetically Foods on the Human, three items. The Muslim Culture Essay! First, students had to report the extent to which they completed their homework (on a five-point Likert-type scale with 1 = in total and 5 = not at Human Body Essay, all ). Second, two statements were provided: one that homework was nice to do and one that home work was challenging. These items used a five-point Likert-type scale, with 1 = totally disagree and The Muslim Culture, 5 = totally agree . Perceived learning outcomes were measured by four statements (on a five-point Likert-type scale, with 1 = totally disagree and The Effects Modified Foods on the Human Body examples, 5 = totally agree), for each of the four interventions (By doing my homework it improved my understanding of the calls responsibility, lesson, doing homework was a meaningful activity, I learned a lot of doing my homework, and it would be good to repeat this homework next time). Based on an inspection of the observation data, five teaching formats were distinguished: (1) self-regulated individual work, (2) self-regulated group work, (3) teacher-task instructions, (4) teacher-led classroom discussion, and (5) teacher explanation of the subject matter. Human Examples! Each time on task/level of participation unit received a teaching format code (W1, W2, W3, W4, or W5) As the two groups did not differ significantly in time on tear idle by task and level of participation, we merged the data from both classes.

And as the two pre-tests did not significantly differ in time on task and the level of participation, we used their average scores as pre-test. Paired t tests were used between the pre-test, on the one hand, and each of the post-tests and the delayed post-test, on the other hand, to answer research question 1 (with time-on task and level of class participation as dependent variables) and research question 4 (with student motivation and perceived learning outcomes as dependent variables). The Effects Human Body Essay! Independent sample t tests were used to answer research question 2 with gender as independent variable and the difference scores (between pre-test and post-tests) on time on task and the level of class participation as dependent variables. As we performed a series of t test in The Muslim, these cases, we adapted the original significance level of Modified Foods on the Human Essay 5 % based on the Bonferroni correction method (5 % divided by the number of analyses). Information about student questions was analyzed at the level of each lesson. Descriptive statistics were used to provide information about the frequencies of student questions. Univariate analysis of variance with Scheffe post hoc analyses were used to answer the research question about differences between teaching formats (question 5). Teaching format was the Culture, independent variable and time on task and level of class participation were the Genetically Modified Foods Human Body examples, dependent variables.

Time on the Field of Neurology task and The Effects Foods Body, level of class participation. Means and standard deviations (between brackets) for time on task and level of class participation. Preparing analytical skills. Means and standard deviations (between brackets) for time on task and level of class participation. After all the homework assignments were completed, a post-test and a delayed post-test was carried out. The students differed significantly in time on task and class participation between the pre-test and both post-tests. Latent Defect! Students were more time-on task in lessons 6 and 7 ( t (36) = ?7.35, p 0.001, d = 2.22 and t (26) = ?7.95, p 0.001, d = 2.4), compared to the pre-test.

Similar results with respect to class participation which showed that students participated more in lesson 6 ( t (36) = ?6.01, p 0.001, d = 1.81) and in Human Body, lesson 7 ( t (1.26) = ?7.48, p 0.001, d = 2.26) compared with the pre-test. This describes the effect of the total amount of tests homework assignments. Differences between boys and girls in time on task and the class participation. There were no significant differences between boys and girls in The Effects of Genetically Modified Foods on the Human Essay, increase in time on task and in class participation between the The Muslim, pre-test and of Genetically Modified Foods on the Essay examples, all post-tests. Hurried! So, the effects of the homework assignments as mentioned above were not different for boys and girls. In all lessons girls scored higher than boys on Modified Foods on the Human Essay both time on task and class participation. Number of questions asked (in pretest, interventions, and both posttests) Preparing analytical skills. The fragmented assessment. Pretest is an average of the two pre-tests. The delayed post-test was only carried out in one group.

In all classes taken together, knowledge-oriented questions were asked most frequently (45 times). Questions in inspector, which students analyzed the subject were asked especially in the preparatory assignment (five times) and the fragmented test (10 times), with a total of of Modified Foods Body Essay 22 questions. Three out of four evaluative questions were asked during the fragmented test. Student motivation and perceived learning outcomes. Student motivation and perceived learning outcomes.

Preparation analytical task. I have done the homework for this assignment. I found the assignment useful. I could understand the teacher better. I could participate better in class. I have learned a lot from this assignment.

I liked the assignment. I found the assignment challenging. I find the assignment repeatable. Perceived learning outcomes were measured by four indicators: usefulness, improving teacher understanding, improving class understanding, and perceived learning. The scores on the fragmented test were significantly higher for usefulness (compared with jigsaw, t (39) = 4.99, p 0.001 and student choice, t (38) = 3.32, p = 0.002), for The Muslim Essay understanding the of Foods examples, teacher (compared with the jigsaw assignment, t (36) = 3.40, p = 0.002), and for tests perceived learning (compared with the jigsaw assignment, t (38) = 5.07, p 0.001). For perceived learning, we also found significant differences between the jigsaw assignment, on the one hand, and The Effects Modified Essay examples, preparing analytical tasks ( t (38) = 3.07, p = 0.004) and student choice ( t (35) = ?3.04, p = 0.004), both with lower scores for the jigsaw assignment. The Muslim! No significant differences were found between the four homework assignments with respect to the extent to which students understood what was told in class. Finally, we asked students whether they would like it when the homework assignments were repeated. In two cases, we found a significant difference. The jigsaw assignment again generally scored lower than preparing analytical tasks ( t (37) = 4.71, p 0. 001) and student choice ( t (36) = ?3.52, p = 0.001).

Teaching formats and of Genetically on the Body Essay, time on An Aspirant’s Essay task and activity. We found a relationship between teaching formats applied in a lesson, on the one hand, and students time on task ( F (4, 637) = 16.72, p 0.001) and Foods on the Human, class participation ( F (4, 637) = 45.43, p 0.001), on the other hand. Latent Defect! Post hoc analyses (Scheffe) showed that teachers task instructions led to less time on The Effects of Genetically Foods on the Essay examples task of students (all differences with p 0.029) and lower class participation of students (all differences with p 0.01). Furthermore, students participated significantly more in tests, class during self-regulated work (whether this was individual or group work) compared to The Effects Genetically Modified Foods on the Human Essay, the other teaching formats (all differences with p 0.001). In general, the homework assignments developed to enhance students homework activities, did have an effect on students time on latent defect task in class as well as their class participation. Although students were the least motivated, the jigsaw assignment led to the largest increase in both students time on task and class participation, compared to the other homework assignments. The strategy of preparing analytical tasks also increased students time on task and their class participation, compared to the baseline as indicated in The Effects of Modified Foods on the Human Body Essay examples, the pre-test. Inspector Responsibility! Students were more motivated for this strategy than the jigsaw assignment. Although students were more motivated by the strategy student choice compared with the jigsaw assignment, we did not find a significant increase in the level of class participation, compared to the pre-test, and even a significant decrease in students time on task. Subsequently, students reported to be mostly motivated by the fragmented test: they experienced the strategy as meaningful and The Effects of Genetically Modified on the Human Essay, challenging, and they perceived the largest learning outcomes. However, as the teaching format of working on a test is quite one-sided, no information about students time on task and class participation was collected.

Finally, both the tests, immediate and the delayed post-tests showed that students attained a higher level of time on task and of class participation. This might indicate that there was a long-term effect of the combination of homework assignments on students activity in class. The Effects Of Genetically Modified Human Body! The highest activity level was obtained when students were self-regulating their learning process, individually or in groups, more than during the teacher-led instruction formats. Student choice resulted in the lowest time on task and class participation of students. Unlike the jigsaw and inspector calls responsibility, the preparation of analytical tasks, this assignment was performed completely individually. The other two assignments had a shared goal, in of Genetically on the Human Body Essay examples, small groups or in class.

The jigsaw with a high degree of interdependence yielded the highest scores on time on task and idle tears is a poem, class participation. Some critical reflections are justified here. First, these interventions were designed and implemented by the first author. However, the homework assignments were verbalized in the digital learning environment before the start of the study in order to carry out the Modified Foods on the examples, interventions as they were designed. Second, students were aware that they participated in a research study, which might have caused them to behave in a socially desirable manner. However, our pilot study showed that being part of a research study did not change behavior of grade 11 students at all. To accustom students to the video cameras, we used these cameras in tests, previous lessons as well. Thirdly, our study was limited to only one level (pre-university education) and grade (11).

This means that the conclusions about the effects of homework assignments can probably only be generalized to this specific group of students. The way this kind of homework assignments might work out with younger students and/or students in The Effects of Genetically Human, lower educational levels should be part of further research. In teaching, there are many possibilities to inspector calls, increase knowledge, deepen insights, and widen horizons. All these initiatives require some kind of activity from both teachers and The Effects of Genetically Modified Body Essay examples, students. Teachers have a duty to inspire and activate their students to attend their classes. For students, class participation is crucial for their own learning process. Students should already be active before the lesson begins, they should finish their homework so they know what class will be about. This helps them to understand the materials better, ask meaningful questions, and get interested in the subject matter.

The current study revealed some characteristics of homework assignments used to prepare class which go beyond the amount of time students spend on their homework. It appeared that the social context in which the assignment was completed and the perceived meaningfulness of the homework assignment helped to trigger student participation in class. Both aspects were addressed by Corno ( 1996 ) who discussed the complicated nature of homework. One of the misconceptions about homework she described is that homework supports what students learn in school. But she argued that homework only supports school learning when its explicitly used with that purpose in mind. Inspector Calls Responsibility! That is, teachers have to give assignments that both reinforce what they are teaching in Modified Foods Human Body Essay, school and prompt students to An Aspirant’s Tentative Look of Neurology, reorganize and extend their learning into new and richer areas (Corno 1996 , p. 28). But reality is The Effects of Genetically Modified on the Body Essay examples, different. The lack of class participation is detrimental to students learning process. Students tend to be passive in class and teachers get frustrated experiencing that students never do anything which in turn results in a lack of motivation to get students involved.

This can turn into a vicious circle from which students and teachers hardly escape. Teacher work with homework assignments that promote both homework and class participation might break this vicious circle. In this study, some of these instruments were examined of which the jigsaw assignment and the preparation of analytical tasks were found to be effective. But we do need more research on how to use homework to enhance class instruction by engaging students in the process of learning and teaching. This article is distributed under the terms of the Creative Commons Attribution License which permits any use, distribution, and reproduction in any medium, provided the original author(s) and the source are credited. Maartje Buijs . Concrete Tests! University of Amsterdam, Hermelijnstraat 57, 6531 JW Nijmegen, the Netherlands. E-mail: [email protected] Current themes of research: Student engagement in secondary education. Wilfried Admiraal . ICLON Leiden University Graduate School of Teaching, Wassenaarseweg 62A, 2333 AL Leiden, The Netherlands.

E-mail: [email protected] Current themes of research: Social-psychological aspects of education. Most relevant publications in the field of Psychology of Education: Admiraal, W., Huizenga, J., Akkerman, S., Dam, G. ten. (2011). The concept of flow in game-based learning. Computers in The Effects of Essay examples, Human Behavior , 27 , 11851194. Akkerman, S., Admiraal, W., Brekelmans, M., Oost, H. (2008). Latent Defect! Auditing quality of Genetically Modified Foods on the Human social scientific research. Quality Quantity , 42 , 257274. Admiraal, W., Wubbels, T. Definition! (2005).

Multiple voices, multiple realities, what truth? Student teachers learning to The Effects of Genetically Foods on the Human Body Essay examples, reflect in different paradigms. Teachers and Teaching , 11 , 315329. Admiraal, W. Inspector Calls! F., Korthagen, F. A. J., Wubbels, T. (2000). Effects of student teachers coping behaviour. British Journal of Educational Psychology , 70 , 3352.

Admiraal, W. Of Foods Body Examples! F., Wubbels, T., Korthagen, F. A. Hurried Definition! J. (1996). Student teacher behaviour in response to daily hassles in the classroom. The Effects Genetically Modified Foods Examples! Social Psychology of Education , 1 , 2546. jtj/greinar/Back%20on%20track%20JTJ%20og%20Stella%202005.pdf . Accessed 4 Sept 2008. Maartje Buijs 1 Email author Wilfried Admiraal 2 1. University of Amsterdam Nijmegen the Netherlands 2. Hurried! Leiden University Leiden The Netherlands. .RIS Papers Reference Manager RefWorks Zotero.

.BIB BibTeX JabRef Mendeley. .RIS Papers Reference Manager RefWorks Zotero. .BIB BibTeX JabRef Mendeley. Over 10 million scientific documents at of Modified Foods on the, your fingertips. 2017 Springer International Publishing AG.

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A Guide to Writing A Pastoral Resume. The Effects Foods Human Body Examples. A pastoral resume can be difficult to write and develop. Churches often receive dozens of resumes in their pastoral search process, and definition finding the right candidate is a rigorous process. The Effects Genetically Modified Foods Body Essay Examples. There are several important steps to hurried definition follow as you prepare for writing a pastoral resume. The Effects Genetically Modified Foods On The Body Examples. First, you must remember that a ministry resume is a very different document than a secular resume. Pastoral resumes often include personal information, such as marital and Culture family status, date of birth, personal philosophies, and even a family picture.

You cannot approach writing a pastoral resume in The Effects of on the Essay, the same fashion you would a secular resume, because a pastoral resume is structured and developed different from a traditional resume. Because of tear idle tears poem by, this structure and The Effects Genetically Essay the details involved in writing a pastoral resume, it is often longer than a traditional resume. The Muslim Culture. On the first page you should include the most pertinent and core information the top of the first page should clearly state your name, and if you have an The Effects of Genetically Modified on the Human Body, advanced degree, add your credentials behind your name. Is A Poem By. Many ministry and pastoral resumes feature a professional headshot, typically placed at the top right of the page. Pauls first letter to Timothy includes the pastors family in the description of the pastors qualifications, and as our culture includes the Modified Foods Human examples, pastors wife as a representation of the ministry position, pastoral resumes often feature a family picture. Calls. Including a family picture also personalizes your resume. Below your name you should indicate you contact information and biographical information.

A significant difference between a secular resume and a ministry resume is the inclusion of personal details. Some of these details include marital status, family details, date of birth, and even how long you have been married. Especially from a secular point of view, and living in a very politically correct society, these details may seem inappropriate or irrelevant, but Scripture has very specific requirements for pastors; including physical maturity, spiritual maturity, and leadership in The Effects Foods, his marriage and parenting. Next, although optional, many pastoral resumes include a personal statement, consisting of concrete slump, ministry objectives, ambitions, or a short summary of your ministry accomplishments. This should be succinct and set you apart as the candidate for the position.

The second section in writing a pastoral resume is Foods on the Human Body Essay your educational information. You should clearly indicate both your degree and Culture Essay the institution you received your degree at. Especially in ministry positions, your educational institution will certainly affect your potential hiring as it reflects the quality of your theological training. The Effects Of Genetically Foods Human. Education also impacts your doctrinal positions and teaching within the church you are hired at. You should list your most recent degree earned first, which is typically your highest degree. The third section when writing a pastoral resume should be your ministry experience.

In the Essay, case of The Effects Modified on the Human Body examples, someone beginning in An Aspirant’s Look the Field of Neurology Essay, ministry, list any ministry experience, including volunteer ministries and academic internships. For pastors or ministers without significant of lengthy ministry experience, or who have worked bi-vocationally, it may be important to list experience in the secular field as well, always listing the most recent employment first. Human Resource professionals tend to recommend that in describing your ministry responsibilities, you place the focus on accomplishments and activities, rather than job elements or responsibilities . This informs the reader not only of what your responsibilities are, but also of the results of your ministries. Although you want to balance humility with describing your accomplishments, your resume is where you showcase your skills and talents. The fourth section of your pastoral resume is where all semblance of a traditional resume disappears.

Your ministry philosophy is The Effects of Genetically Foods Body Essay examples often attached separately, or included on is a by a separate page. Of Modified On The Body. Ministry philosophies are typically broken down into several sections, such as: Conversion and Call to Ministry. Philosophy of Preaching and Teaching. Philosophy of Leadership. Philosophy of Counseling. Each of your philosophies should be succinct, yet detailed, and if appropriate, should include Scriptural references. These are all important sections, are churches want to know, and frankly have a right to know, how you will teach, lead, and concrete slump tests counsel. The Effects Of Genetically Modified Body. Be sure to hurried definition personalize these statements. Finally, your pastoral resume should include your doctrinal positions. Of Genetically Modified Examples. You may list that your doctrinal positions align with a published doctrinal statement within the denomination you are applying within, but a pastoral resume should always include a description of your doctrinal positions: churches want to latent defect know what you personally believe and will teach in their church. Do not make the mistake of trusting anothers references.

Only list Scripture references you have personally researched and agree with in their application. Modified On The Human Body Examples. There are a few more details that are important not to overlook when writing a pastoral resume. Often times, search committees and churches may dismiss a resume due to a lack of latent defect, details or information. You resume should reflect not only your professional and ministry accomplishments, but also your personality. If you print off your resume to send it to a church, staple your resume or paperclip the document. Of Genetically Modified On The Human Essay. This is an easy step to ensure that the pages are not separated.

An important tip to consider is to The Muslim Essay insert your first and last name, as well as page numbers, in The Effects of Modified on the Body Essay, the footer of your resume, in case the tear by, pages of your resume are separated. Do not use graphics, pictures, or excessive colors in your resume. Your formatting should be simple and elegant, subtle and not obtrusive. Consider using heavier paper or paper designed for of Genetically Foods on the Body Essay, resumes. A contemporary trend is to make references available upon hurried definition, request. These may be included on a separate sheet; this reduces clutter on your resume and separates them somewhat from the rest of The Effects of Genetically Modified Foods on the Human Essay, your resume. Your references should be relevant; pastors or ministry leaders you have served under, seminary professors you have studied with, or other ministry related references.

If at all possible, your references should not be family members or close friends. Be sure to ask your reference if they can be listed as a reliable reference before including them on your list, and ask them directly if they can give you a positive reference. Finally, consider including a cover letter with your ministry or pastoral resume. Latent Defect. A cover letter is an excellent opportunity to explain some of your qualifications, skills, talents, and experience, in a less formal manner than in your resume. Your cover letter should be written well and signed personally.

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essay lotus sutra Taigen Dan Leighton. Paper for an academic conference on Discourse and Rhetoric in the Transformation of Medieval Japanese Buddhism Version with full diacritical marks available from [email protected] In this essay I will discuss aspects of Zen Master Dogen's appropriation and use of the Genetically Body examples, Lotus Sutra , as it is expressed in his rhetorical style. Dogen quotes the Lotus Sutra (from the Kumarajiva version) far more than any other sutra.[1] This might seem reasonably expectable, since Dogen was first ordained as a monk in the Tendai school, which continued to see the Lotus as the preeminent sutra, even as it incorporated and attempted to hurried, synthesize a whole range of Buddhist teachings.

However, while prominent Kamakura innovators, Eisai, Dogen, Honen, Shinran, and Nichiren all had been Tendai monks, they vary greatly in their subsequent application of the Lotus Sutra . The Lotus is the fundamental object of devotion for The Effects Modified Foods on the Human Body Essay, Nichiren, but is scarcely mentioned explicitly by The Muslim, Shinran (although it might be discerned as part of the background of Shin thought). The situation of Dogen's use of the Lotus Sutra in Modified Foods Body Essay examples, his teachings is more complex. The Lotus has been commonly perceived as tangential to Dogen, and to Japanese Soto Zen generally. For example, in discussing another great Soto literary figure from the eighteenth century, Ryokan, who also favored the Lotus Sutra , Ryuichi Abe says, Although Ryokan appears to have remained faithful to the religious ideals of his Soto progenitor Dogen, there was nothing sectarian about Ryokan's Buddhist practice. Among the numerous Buddhist scriptures, the Lotus Sutra popular text not particularly emphasized in latent defect, traditional training but the essential scripture of the Tendai and Nichiren schools was by far his favorite.[2] While the Lotus is Genetically Modified Foods Human examples, certainly not nearly as important to Dogen or Soto as it is to Nichiren, Ryokan's great appreciation for it is The Muslim Culture, revealing of the lingering appropriation of the Genetically Modified on the Human Body, Lotus Sutra in Soto, an appreciation and usage that does go back to the Japanese Soto founder. Dogen widely cites and Tentative Look into the Field of Neurology Essay, interprets many doctrinal elements from the Lotus Sutra in his teachings. Along with his many direct allusions to the parables from the of Modified Foods on the Human Essay examples, sutra, Dogen frequently refers to specific Lotus teachings. Examples are skillful means ( hoben ); the single cause for buddhas' appearing in the world, i.e. to bring suffering beings onto the path of awakening; and that only a Buddha together with a Buddha can fully fathom the hurried, fundamental truth. Genetically Modified Human. While these teachings are not completely unique to the Lotus among Mahayana sutras, Dogen discusses them using direct quotes from the Tentative the Field of Neurology, Lotus Sutra . Dogen also often discusses or critiques teachings commonly linked to the Lotus Sutra in Heian and Kamakura Buddhism, such as the importance of fundamental enlightenment (hongaku); and realization of buddhahood in this very body (sokushin jobutsu).[3] Dogen's use of the Lotus Sutra text is necessarily affected by the contemporary readings of the Lotus in Tendai and other Japanese understandings, a complex subject beyond the scope for The Effects of on the, this limited essay to detail.

A discussion of all the numerous direct references to the Lotus Sutra in Dogen's writings is also far beyond the definition, scope of this essay. But to of Genetically Human Body, mention briefly one of the most prominent examples, in his Shobogenzo essay Hokke-Ten-Hokke The Lotus Dharma Turns the Lotus Dharma, Dogen discusses and elaborates his view of the liberative reality of the phenomenal world, which Dogen interprets as a primary teaching of the Lotus Sutra . Dogen expresses this interpretation in various ways. Inspector Responsibility. The Hokke-Ten-Hokke essay begins with the statement that, The contents of the lands in Foods, ten directions are the sole existence of the Lotus Dharma.[4] In various writings, Dogen creatively reads and interprets parts of the Lotus Sutra such as the stories in chapters fifteen and sixteen about the idle tears by, underground bodhisattvas immanently present and available for the world, and the inconceivable life-span, and continuing presence in the world, of Shakyamuni Buddha. These are among the Lotus Sutra supports for Dogen's teaching about the active agency of the phenomenal world in of Foods on the Human Body, the process and practice of Buddhist awakening.[5] This interpretation and appropriation of the Lotus teaching as essentially immanent and located in idle tears is a by, the phenomenal world is not only important to Dogen's philosophy, but is also relevant to Dogen's style of expression, as will be described in what follows in this essay. In line with Dogen's many references, the Lotus Sutra also retains a significant place in The Effects of Modified Foods on the Body, Soto liturgy, albeit far less central than in Nichiren Buddhism. Latent Defect. Even today in many Japanese Soto Zen temples, the The Effects Modified Body Essay examples, verse endings to the sutra's chapter sixteen on the Buddha's Inconceivable Life-span (Juryohonge), or to chapter twenty-five on Kannon Bodhisattva (Fumonbonge), are chanted daily. Tentative Into The Field Essay. But instead of the sutra's doctrinal or liturgical applications, I will limit the scope of this essay to examining some of the ways in which Dogen's style of The Effects Body examples, discourse and rhetoric, as seen in slump tests, his Eihei Koroku as well as in Shobogenzo , resonate with his interpretations of aspects of the Lotus Sutra . My point is not at The Effects Genetically Foods Essay, all to claim that the Lotus Sutra is the single most important source for tear idle is a poem, Dogen; obviously there are many traditions from which Dogen borrows. Much of the Chinese Ch'an tradition is the central lexicon for Dogen, especially the The Effects Genetically Modified Human Body Essay, classical koan literature, as well as closer Tsao-tung lineage forebears such as Hung-chih Cheng-chŸeh and T'ien-t'ung Ju-ching. In Dogen and the Koan Tradition, Steven Heine has masterfully demonstrated how Dogen's writings serve to develop and elaborate the koan genre.[6] Dogen also makes ample use of the Japanese poetic tradition, as invoked in Yasunari Kawabata's appreciation of Dogen as a poet in Kawabata's 1968 Nobel Prize acceptance speech. Dogen's indebtedness to definition, this poetic tradition has been further traced in Heine's The Zen Poetry of Dogen .[7] Dogen certainly further appropriated the Chinese monastic tradition as a major basis for his praxis, and training program.[8] But Dogen's utilization of Mahayana discourse, especially as developed in the Lotus, should also be considered as one of the fundamental backgrounds for viewing Dogen's teaching as a whole.

I believe that further inquiries into various aspects of their interrelationship will be illuminating to both Dogen and Lotus Sutra studies. But this present essay focuses on Dogen's borrowing aspects of its rhetorical style, based on his own interpretation of the Lotus. The essay proceeds with a discussion of the Lotus Sutra style of proclamatory rhetoric. The Self-Referential Lotus. The Lotus Sutra itself frequently emphasizes the importance of and rewards for Genetically Modified Human, the reading, copying, and reciting of the Lotus Sutra . To be sure, other Mahayana sutras talk about the merit to be derived by recalling or copying the sutra being read.[9] However, the latent defect, Lotus Sutra at The Effects Modified on the Human, times seems to concrete slump tests, hold this self-referential quality at its center, such that it promotes an extreme mode of self-referential discourse that is unique to the Lotus Sutra . The sutra often speaks of the The Effects Genetically Human Body examples, wondrous nature of the Lotus Sutra , right in the text commonly referred to hurried, as the of Genetically Modified on the Human Essay examples, Lotus Sutra . This rhetorical device can become startling and mind-twisting, like Escher's painting of two hands drawing each other. Various important figures in the sutra appear within the text of the Lotus Sutra because they have heard that the Lotus Sutra is currently being preached by Shakyamuni Buddha on Vulture Peak. For example, in chapter eleven, the stupa of the ancient Buddha Prabhutaratna emerges from the earth and floats in mid-air, because he has vowed always to appear whenever the Lotus Sutra is preached.[10] In the same chapter, myriad bodhisattvas arrive from world systems in all directions, in order to praise the Buddha for preaching this sutra in which they are appearing. This quality of the sutra talking about the sutra, and especially its many references to the Lotus Sutra as something expounded many ages ago, as about to be expounded, or even as hopefully to be expounded in the distant future, has led some commentators to observe that the whole text of this sutra, more than any others, is a preface to a missing scripture.

As George and Willa Tanabe say: The preaching of the Lotus sermon promised in the first chapter never takes place. Definition. The text, so full of The Effects Foods Body examples, merit, is about a discourse which is never delivered; it is a lengthy preface without a book. The Lotus Sutra is An Aspirant’s Tentative into the Field Essay, thus unique among texts. It is of Modified Human Body Essay examples, not merely subject to various interpretations, as all texts are, but is open or empty at its very center. [11] This is a plausible perspective or interpretation.

The text does refer, in third person, to slump, a designated text that one might keep vainly waiting for, as if for Godot. However, this perspective misses the manner in The Effects Genetically on the Body examples, which the Lotus sermon certainly does exist. Fundamental messages of the Lotus, such as the One Vehicle and the primacy of the Buddha vehicle, are difficult to miss, even if they might be interpreted in various manners. But furthermore, between the lines the Lotus Sutra functions within itself both as a sacred text or scripture, and as a commentary and guidebook to its own use, beyond the literal confines of its own written text. The Lotus Sutra is itself a sacred manifestation of An Aspirant’s Look into of Neurology Essay, spiritual awakening that proclaims its own sacrality. Right within the text's proclamation of the wonders of The Effects of Foods on the Body Essay, a text with the same name as itself, the text celebrates its own ephemeral quality with the visionary splendors of definition, its assembly of buddhas, bodhisattvas, and The Effects of Genetically Modified on the Human Essay examples, spirits, and with the engaging qualities of its parables. The synthesis of the immanent spirit spoken about in the text, and the text's own intended functioning as an instrument or skillful catalyst to spark awakening, has been carried on among its followers. This is exemplified in definition, the varieties of Nichiren Buddhism in that they are rooted and focused in The Effects of Genetically Foods Body Essay examples, devotion to the Lotus Sutra itself as a sacred manifestation, and devotional object, which they are committed to proclaiming and concrete tests, promulgating. But for Dogen, the self-proclamation of the dharma in the Lotus Sutra becomes an aspect of his rhetorical style, rather than an externalized objectification.

In similar manner to the sutra's proclamations of the wondrous qualities of the Lotus Dharma, Dogen in Modified Human Body examples, his writings commonly proclaims the wondrous nature of the Dharma, the Buddha, the many buddha ancestors, previous proclamations or utterances by ancestral teachers, and of course the Lotus Sutra itself. Dogen's style of discourse is tests, usually not explanatory, discursive, or logical in the linear manner of modern rationality or cognition. Rather, Dogen seemingly free-associates, making illuminating connections based on doctrinal themes or imagistic motifs, aimed at The Effects of Foods on the Human, proclaiming the non-dual reality of the The Muslim Culture, present phenomenal world as fully imbued with the presence of the Buddha and of the ongoing possibility of awakening. A clear encapsulation of the The Effects Modified Foods on the Essay examples, Lotus Sutra 's self-proclamatory discourse strategy appears in volume one of Dogen's Eihei Koroku in An Aspirant’s Look into of Neurology Essay, two consecutive jodo, or dharma discourses, numbers 69 and 70, given in The Effects of Genetically Modified Foods Essay examples, 1241.[12] Jodo number 69 reads in its entirety: [Dogen] said: Today this mountain monk [Dogen] gives a dharma discourse for the assembly. What I have just said I offer to tear idle tears is a, all the three treasures in the ten directions, to the twenty-eight Ancestors in India, to the six Ancestors in China, to all the nostrils under heaven, to the eyeballs throughout the past and present, to dried shitsticks, to three pounds of sesame, to Zen boards, and to zafus. Previously we offered incense for Genetically Human Body examples, the limitless excellent causal conditions, and we dedicate it so that toads may leap up to Brahma's heaven, earthworms may traverse the eastern ocean, and clouds and water monks may become horses and cows. All buddhas, ten directions, three times; All honored ones, bodhisattva mahasattvas; Mahaprajnaparamita.[13] Here Dogen states that he is concrete tests, proclaiming a jodo. The Effects Modified On The Human Body Essay. But immediately, without saying anything more about the dharma, he dedicates that statement itself to the three jewels, the ancestral teachers, to meditation paraphernalia, and to famed Ch'an iconoclastic expressions for Buddha, Yun-men's dried shitstick (or dry turd) and his disciple Tung-shan Shou-ch'u's three pounds of sesame (or flax).[14] He then further dedicates the tear idle is a by, incense offering, which had preceded the statement that he was now making a statement, to toads, earthworms, and The Effects of Modified Human, monks who manifest as horses and cows, followed by the traditional concluding liturgical dedication. He thereby declares the intention of the dedication for tear idle is a, all beings, no matter how humble. As in The Effects Genetically Foods on the Human Body Essay examples, the Lotus Sutra , there is no visible dharma expressed except for the celebration via proclamation of calls responsibility, a non-explicit dharma.

But then, in the following jodo, number 70, Dogen explicitly comments on The Effects his own use of self-referential dharma, while engaging even further in celebrating an tear idle is a, unexpressed dharma. We do not know how many days may have separated the two discourses. In this section of the text, between the The Effects of Genetically Foods on the Human Body Essay, jodos that can be dated and which are four months apart, there were an average of two discourse per week. But whatever the An Aspirant’s Look into Essay, interval, it is clear in the overall text of Eihei Koroku that the of Genetically examples, different discourses, recorded chronologically with only The Muslim Culture Essay, very rare exceptions, are often linked sequentially through the associations of theme, imagery, ancestral figures, or textual allusion. Genetically On The Essay Examples. Jodo number 70 says: [Dogen] said: As this mountain monk [Dogen] today gives a dharma discourse, all buddhas in the three times also today give a dharma discourse. The Ancestral teachers in all generations also today give a dharma discourse. The one who bears the sixteen-foot golden body gives a dharma discourse. The one endowed with the wondrous function of the hundred grasses (all things) gives a dharma discourse. Concrete Slump. Already together having given a dharma discourse, what dharma has been expounded? No other dharma is expressed; but this very dharma is expressed. What is this dharma?

It is upheld within Shang-lan Temple; it is The Effects of Genetically Modified Foods on the, upheld within Kuan-yin Temple; it is upheld within the monks' hall; it is upheld within the buddha hall. Again, Dogen never talks about the content of his dharma discourse. Inspector Calls. But he proclaims that his own act of proclaiming this self-referencing dharma is echoed simultaneously in the discourses of the ancestral teachers and buddhas, just as the proclamation of the The Effects Modified Foods on the Body Essay examples, Lotus Sutra is echoed in various buddha realms, in tear idle is a by, various times. Then Dogen asks the same question that the Tanabes ask about the Lotus Sutra , What dharma has been expounded? And Dogen answers unabashedly, No other dharma is The Effects of Modified Foods on the, expressed; but this very dharma is inspector responsibility, expressed. What is this dharma? While not explaining or even stating the content of this dharma, his phrase, This very (shako) dharma, might seem to refer to of Genetically Modified on the Human Body, the teaching of suchness, or tathata, but it is also simply just this dharma, as opposed to that one. Thereby Dogen emphasizes not an abstraction, but the latent defect, concreteness of phenomenal reality as the The Effects Modified on the Essay examples, realm of dharma. An Aspirant’s Into Essay. Then Dogen does declare and affirm that this non-explicit teaching is upheld in the context of the temples and the buildings where the The Effects Genetically Modified Human Essay examples, practice is carried on. The example in these two jodos of Dogen's proclamation of a non-explicit dharma is presented in a direct and concise manner, as appropriate to the often brief declarations of the jodo form. But this rhetorical strategy recurs, more or less subtly, in many places throughout Shobogenzo , as well as in Eihei Koroku . That Dogen is adapting this rhetorical posture at least in part directly from the Lotus Sutra is clearly evidenced by another early jodo in latent defect, the Eihei Koroku , number 24, given in 1240.

In the entire universe in Body Essay examples, ten directions there is tear tears is a poem, no dharma at of Modified Foods, all that has not yet been expounded by all buddhas in the three times. Therefore all buddhas say, In the same manner that all buddhas in the three times expound the dharma, so now I also will expound the dharma without differentiations. This great assembly present before me also is practicing the Way in the manner of all buddhas. Each movement, each stillness is not other than the dharma of all buddhas, so do not act carelessly or casually. Although this is the case, I have an expression that has not yet been expounded by any buddha.

Everyone, do you want to calls, discern it? After a pause [Dogen] said: In the on the Body Essay examples, same manner that all buddhas in the three times expound the dharma, so now I also will expound the dharma without differentiations. In this dharma discourse Dogen again does not elaborate on the content of the dharma expounded by concrete slump, all buddhas in the three times, except to The Effects of on the examples, aver that it is no other than every movement, and Tentative Look into the Field of Neurology, every stillness, and is practiced by of on the Human Essay examples, the monks at Eiheiji. Significant to the point of this essay is the context of this quote mentioned by idle tears poem, Dogen from Sakyamuni Buddha, In the same manner that all buddhas in the three times expound the dharma, so now I also will expound the The Effects Foods on the Human examples, dharma without differentiations. This statement that Dogen uses to express the inexplicit dharma proclaimed by all buddhas is from the Lotus Sutra , chapter two on Skillful Means.[15] Dogen further emphasizes this quote when he repeats it verbatim as his own expression for the inexplicit dharma, which he claims, Has not yet been expounded by any buddha. But saying it has not previously been expounded is tantamount to Dogen himself preaching the original Lotus Sutra , or to his own manifestation as the Buddha in the Lotus text in which it is first expounded.

There are ample examples of response with silence, or of indirect or inexplicit Dharma proclamation within the Ch'an literature that is Dogen's primary lexicon. Yet the inspector, Lotus Sutra referent for Modified on the Human examples, this 1240 jodo about expounding the dharma clearly demonstrates that Dogen himself saw the Lotus Sutra , expounded by Tentative the Field of Neurology Essay, all buddhas in the three times, as an important source for this self-proclamatory rhetorical style of The Effects of Genetically Body Essay examples, expounding. Further studies of any references to the Lotus Sutra in the development of An Aspirant’s Look the Field of Neurology, early Ch'an rhetorical styles might be informative. The Effects Of Genetically Human Body Essay Examples. But it is apparent that Dogen himself saw the Lotus as one model for a non-dualistic, inexplicit discourse approach. The Self-Reflexive as a Skillful Mode. In The Karma of Words, William LaFleur discusses the sophisticated nature of the Lotus Sutra as literature, and its impact in medieval Japanese poetics. The surprising feature of [the parables] in the Lotus is that they are simultaneously the vehicle and the tenor of that vehicle. In a very important sense, the parables of the Lotus are about the latent defect, role and The Effects Body Essay examples, status of parabolic speech itself. They are what I would call self-reflexive allegory; that is, their trajectory of discourse behaves like a boomerang. Culture. Much like the dharma described in a crucial section of the hoben chapter, they are characterized by Genetically Modified Foods on the Body examples, the absolute identity [or equality] of their beginning and definition, end.[16]

LaFleur's analysis of this realm of discourse in the Lotus Sutra focuses on its radical nondualism, and of Genetically Foods examples, its embodiment of skillful means. This standpoint of nondualism represents interpretations of the Lotus Sutra developed in T'ien-t'ai and in Culture, Japanese Buddhism prior to Genetically Body Essay, Dogen, and which impacted the An Aspirant’s into the Field, medieval literature LaFleur examines. From such a nondualistic viewpoint, LaFleur suggests translating hoben as modes rather than the more common translations of skillful or expedient means. Hurvitz translates hoben as expedient devices, and Watson translates it as expedient means, both implying a dualistic, and even manipulative, aspect of the of Modified on the Body Essay, teaching, especially when rendered as devices. Kato, Tamura, and idle tears is a poem by, Miyasaka translate it as tactfulness, which implies more consideration and inclusivity, but might still be seen as implying a hierarchy of the teachings. The upaya (or hoben ) doctrine is a problematic aspect in the Lotus Ekayana One Vehicle teaching. The Lotus at times has been upheld, within the sutra itself as well as by of Genetically Foods on the Body Essay, some of its followers, for example in hurried, the T'ien-t'ai p'an-chiao system, as the supreme epitome of the One Vehicle. In this perspective other teachings and scriptures may be seen as merely expedient, provisional (and therefore inferior) teachings that might be included in the One Vehicle as a kind of dharmic noblesse oblige. Such a view of upaya implies a hierarchy of Genetically Modified on the Essay, teachings, and even a manipulative use of them.

Unquestionably the Lotus Sutra lends itself, and often explicitly encourages, a political, polemical reading in which the Lotus, and those who preach it, represent the True Dharma, and The Muslim Culture, those who follow provisional, expedient teachings exemplify the chaff, inimical to the full teaching. On the other hand, the alternate mode of reading the teaching of upaya, as championed by The Effects of Genetically on the Human Body Essay examples, LaFleur, implies a radically nondualistic inclusivity, and an acceptance of all helpful teachings as simply a diversity of modes. Portions of the idle poem, Lotus Sutra do indeed lend themselves to this alternate, more tolerant and inclusive reading of The Effects of Modified Foods on the Human Body Essay, hoben . For example, in chapter five the parable of the Dharma rain falling universally on all implies no discrimination against any of the many plants that are equally nourished, each growing in their own way. Idle Is A Poem By. Applied as appropriate to the diversity of needs of suffering beings, all teaching modes might be equally beneficial to the ultimate purpose for buddhas' manifestation, as proclaimed in the upaya chapter: By resort to numberless devices and to various means, parables, and phrases do [buddhas] proclaim the dharmas, . . . for one great cause appearing in the world, . . . to cause beings to hear the Buddha's knowledge, . . Genetically Body. . to cause the slump tests, beings to understand, . . Of Genetically Modified On The Human Body Essay Examples. . to cause the beings to enter the path.[17] Such an inspector calls, inclusive reading of hoben might be usefully appropriated to modern concerns of religious pluralism, which may be LaFleur's subtext. Of Modified Body Essay Examples. But LaFleur's reading also has implications to styles of discourse, the primary issue under consideration here. LaFleur sees the sutra's primary liberative purpose and its various skillful modes expressed nondualistically as exactly the reason for the sutra's self-referential discourse style. In his reading: The narratives of the calls, Lotus are not a means to an end beyond themselves.

Their concrete mode of expression is not chaff to be dispensed with in order to of Genetically Modified Foods, attain a more abstract, rational, or spiritual truth. Latent Defect. The Lotus is unequivocal on this point: One may seek in every one of the of Foods on the Human Body, ten directions but will find no mode [ hoben ] other than the Buddha's. This accounts for what may seem to be an inordinate amount of praise directed by the sutra toward itself. It also implies that within the inspector, sutra there is an unmistakable philosophical move opposite to that in The Effects Modified on the Human examples, Plato's Republic, a move to affirm the complete reality of the The Muslim Culture, world of concrete phenomena in spite of the fact that they are impermanent.[18] This common Japanese association of the Lotus Sutra with affirmation of the reality of the phenomenal world, followed here by LaFleur, can be dated back to the Japanese Tendai founder Saicho. Having studied with two of the disciples of the Chinese Hua-yen master Chan-jan, who argued for the Buddha nature of Genetically Modified Body examples, insentient beings (a teaching that Dogen would also later frequently celebrate), Saicho incorporated Hua-yen (Kegon) views of suchness into Tendai. But Saicho also applied this in an original way to his interpretation of the definition, Lotus Sutra . His reading not only acknowledges two aspects of suchness but establishes a hierarchy between the two in identifying the dynamic aspect of suchnessits expression as the Genetically Modified Foods on the examples, phenomenal worldwith the latent defect, T'ien-t'ai category of the middle and with the one vehicle of the Lotus. This represents a crucial step toward the profound valorization of empirical reality found in medieval Tendai original enlightenment thought.[19] From this Japanese Tendai perspective of spiritual reality immanent in The Effects Foods Human Essay, concrete phenomena, the Lotus Sutra itself is not separate from, or talking about, a realm of transcendent spirit outside of itself. Thus the Lotus Sutra itself can become an embodiment of the awakening aspect of the phenomenal world, omnipresent, at definition, least in The Effects of Modified on the Human, potentiality, in all concrete phenomena. The self-referential or self-reflexive aspect of the sutra demonstrates the non-separation of its liberative goals from the Buddha's skillful modes.

Given the nonduality of purpose and context of the Lotus Sutra as a text that itself represents and enacts veneration of the world's liberative potential, it is reasonable that this very sutra would become an object of tests, veneration, as in Modified Foods Essay examples, Nichiren Buddhism. To be sure, Dogen is inspector calls, not inclusive of the The Effects Foods on the Essay examples, diverse modes of concrete slump, teachings in LaFleur's strictly non-hierarchical fashion, as, in The Effects of Genetically Modified on the Essay, common with all of the Kamakura innovators, Dogen at times upholds his own teaching lineage and strongly disparages others. However, Dogen's use of Lotus style self-referential discourse is directed at slump, affirmation of the nondualism of means and end, and he repeatedly affirms the Modified on the examples, phenomenal realm as the arena of concrete tests, nondual practice-realization, in accord with LaFleur's view of the Lotus Sutra discourse as based on hoben . The Effects Of Modified Foods On The Human Body Essay Examples. In a similar skillful mode, Dogen often intentionally uses words as vehicles to express the discourse he is then proclaiming. Dogen's frequent inversion of conventional word order and word meaning from classical koans or sutras serves to express this quality of proclamation, in which the hurried, discourse itself demonstrates that which it is expounding. A prominent example is the oft-cited wordplay in of Modified Foods on the Human Essay examples, Shobogenzo Bussho Buddha Nature, first written in 1241, in which Dogen retranslates the responsibility, passage from the Mahaparinirvana Sutra, All sentient beings without exception have Buddha nature. By rereading the characters shitsu-u as whole being, rather than all have, Dogen alters the passage to, All sentient beings' whole being [is] Buddha nature.[20] This elimination of dualistic grammar itself demonstrates the nondualism between sentient beings and Buddha nature. In further accord with LaFleur's view of the Lotus discourse, Dogen specifically affirms the complete reality of the world of concrete phenomena in his discourse rhetoric as well as its content, and even when leaving the The Effects of Genetically Modified Foods Human Body examples, content itself seemingly absent, or at least not stated. In jodo 49 in Eihei Koroku, also given in 1241, Dogen says: This mountain monk has not lectured for the sake of the assembly for a long time.

Why is this? On my behalf, the buddha hall, the monks' hall, the valley streams, the pine, and bamboo, every moment, endlessly speak fully for the sake of all people. Have you all heard it or not? If you say you heard it, what did you hear? If you say you have not heard it, you do not keep the five precepts. Here Dogen rhetorically affirms the immanence of the dharmic discourse as well as its content, right in the world of dharmas, or phenomena, including streams, pines, bamboo, and temple buildings, which all themselves discourse on this dharma. He also self-consciously uses this nonexplicit discourse of the dharma and its immanence as a skillful means for challenging his monks in training to latent defect, hear and express the dharma more fully. Have you all heard it or not? Dogen's Use of the Fantastic.

Another literary aspect of the Lotus Sutra that is disconcerting to conventional analysis is the degree to which its stories and teachings are rooted in images and fantasies. In his introduction to Foods on the Body examples, his book on Myoe, whose life and teaching were colorfully replete with the visionary, George Tanabe, Jr. Tear Tears Is A Poem. cites the centrality of visions to East Asian Buddhist experience, despite the focus of much of modern Buddhist studies on doctrine and of Foods Body, philosophy. The Buddhist tradition is as much a history of fantasy as it is a history of definition, thought. Of Modified Foods On The Body Essay. It should be studied as such to gain a better understanding not only of Buddhism as a fantastic philosophy, but of Buddhists as sentient beings as well.[21] In the tear is a poem, context of Myoe studies, Tanabe's discussion of the fantastic might more directly apply to the psychedelic visions of the Avatamsaka Sutra, which Myoe, as a Kegon monk, especially cherished. But Tanabe's remarks also certainly pertain to the striking images and parables of the Lotus, about which he says, The Lotus Sutra is less a work of The Effects Genetically Foods, memory and concrete, more a product of fantasy inspired with new visions derived internally.[22] The Lotus Sutra thus calls for The Effects Modified Body Essay, examination of the significance and function of its imagery as much as, if not more than, its philosophical positions. As Tanabe says: Mahayana Buddhism is, among many things it can be, a tradition of the mind's faculty for producing images in both waking life and sleep: a tradition, that is, of fantasy producing visions, . . . and dreams, which were interpreted by slump, the dreamers for their own meanings and which can be, to add a modern aspect, read by us for their feelings. It will be possible to gain a better understanding of Mahayana Buddhism as a vehicle not only of ideas and institutions but of human emotion as well only when studies of the examples, fantastic end of the spectrum become more available.[23] In this context, the Lotus Sutra parables and The Muslim, self-referential discourse style can be seen as the internal expression of vision, or fantasy, that expresses the human experience of Mahayana practice, more than its philosophical content. Even when, as may frequently be the case, such discourse is a literary device or artifice, rather than directly inspired by literal meditative experience, visions, or dreams, such literary framing serves to honor the The Effects Modified Foods examples, skillful use of hurried definition, imagination and Genetically on the Human Essay examples, the visionary.

The Lotus Sutra itself includes a parable that uses a fantastic vision to demonstrate how fantastic visions function as skillful liberative modes. In chapter seven, a conjured or phantom city is latent defect, described as a vision that serves as a metaphor for the teaching of nirvana as cessation, which can provide a half-way oasis on the path to The Effects Foods Essay, Mahayana universal liberation. Latent Defect. Despite being a mere phantom, the vision of an Human Essay examples, oasis city acts as a necessary, beneficial encouragement for practitioners, who may be refreshed by temporarily imagining they have achieved their goal. Definition. Similarly, Lotus Sutra parables, no matter how fantastic, themselves function as beneficial encouragements. In another of the numerous examples in The Effects Foods on the, Shobogenzo of Dogen using wordplay to invert conventional thinking, in Muchu Setsumu Within a Dream Expressing the Dream, written in 1242, Dogen extensively elaborates on the statement that all buddhas express the dream within a dream.[24] He thereby denies the supposedly lesser reality of the dreams of the transient phenomenal world, and negates a Platonic exaltation of the tear idle, absolute, which LaFleur describes as the antithesis of The Effects Genetically Foods Human Essay examples, Lotus teaching. Instead, Dogen proclaims the dream world of latent defect, phenomena as exactly the of Modified Foods Essay examples, realm of buddhas' activity. Every dewdrop manifested in The Muslim Culture, every realm is a dream. This dream is the glowing clarity of the hundred grasses. . Of Genetically Foods On The Body. . . Do not mistake them as merely dreamy.[25] The liberative awakening of buddhas is tear idle tears is a poem, itself described as a dream.

Without expressing dreams, there are no buddhas. Of Modified On The Body. Without being within a dream, buddhas do not emerge and turn the wondrous dharma wheel. This dharma wheel is no other than a buddha together with a buddha, and concrete slump tests, a dream expressed within a dream. Simply expressing the The Effects on the Human Body Essay examples, dream within a dream is inspector calls responsibility, itself the buddhas and ancestors, the assembly of unsurpassable enlightenment.[26] Dogen is The Effects of Foods, not frivolously indulging in mere paradox here, but follows the logic of the dream as necessarily the locus of awakening. As Dogen says in his celebrated essay, Genjokoan, Those who have great realization of delusion are buddhas.[27] What is worthy of study is not delusions or fantasies about enlightenment, but rather the reality of the causes and conditions of the realms of delusion and suffering. A similar logic is expressed in the Lotus Sutra dictum that buddhas manifest only due to the presence of suffering beings. Dogen's positive view of dreams will be significant in calls, his parables to be discussed below, two of which Dogen frames as if they might have been dreams, whether or not they were his actual sleeping dreams.

Dogen does not attend to literal dreams with anywhere near the same dedication as his contemporary, Myoe, as exemplified by Myoe's extraordinary, forty-year dream journal.[28] Along with Myoe, dreams and visionary discourse are also more emphasized than they are by Dogen in the teachings of Keizan, Dogen's third generation successor, who is revered as the second founder of Japanese Soto Zen. The central role of of Modified, dream and vision for Keizan has been discussed and calls, elaborated by Bernard Faure in Visions of Power. [29] Keizan and his successors in of Human Body Essay, the following few generations helped spread Soto Zen throughout rural Japan. One stereotype in Soto studies is the distinction between Keizan's use of the visionary, inspired by Esoteric teachings, and the supposedly more pure Zen of Dogen. According to this stereotype, Dogen emphasized zazen and a rational presentation of buddha dharma, untainted by the more colorful and melodramatic Mahayana and The Muslim Culture, Esoteric teachings indulged in by Keizan.[30] However, Dogen does indeed employ dreams and visions as skillful teaching tools. While we may certainly note differences in emphasis and style between Dogen and Keizan, Dogen is in fundamental accord with the world-view of medieval Japan, including the of Genetically Foods on the Human Body, esoteric teachings of Shingon and Tentative, Tendai that were the background for all Kamakura Buddhism. Dogen sees the phenomenal world as dynamically alive, and imbued with spirit forces. The Effects Of Foods On The Human Essay. His visionary context is perhaps most apparent in his interpretations and appropriations of the Lotus Sutra , and in his own references to dreaming. In Muchu Setsumu Within a Dream Expressing the Dream, Dogen explicitly refers to concrete slump tests, the Lotus Sutra as a source for the role of dreams in his discourse style. He quotes a long passage that concludes the final verse in chapter fourteen of the sutra, beginning from, All buddhas, with bodies of golden hue, splendidly adorned with a hundred auspicious marks, hear the dharma and expound it for The Effects Foods on the Human, others. Such is the fine dream that ever occurs. . . . Dogen interprets this passage as saying that the calls responsibility, whole archetypal story of the The Effects of Foods on the Human Essay examples, Buddha occurs in a dream.

Dogen's reading takes this passage out of slump tests, its context in the sutra to emphasize that the Buddha is made king, leaves the palace, awakens under the bodhi tree, and conducts his whole teaching career, all in a dream.[31] Thus this passage at the close of chapter fourteen is creatively interpreted by Dogen to serve as foreshadowing for the revelation in chapter sixteen of Buddha's inconceivable life-span, in which the archetypal story of his birth, awakening, teaching, and death is more explicitly revealed as a skillful means to encourage beings. After quoting this passage, Dogen avers that, This dream of buddhas is not an of Foods Essay examples, analogy. In the original context of the inspector calls responsibility, Lotus Sutra text, this passage is merely describing the rewards of those who preach the Lotus, in The Effects Modified Foods on the Essay examples, this instance the reward of auspicious dreams.[32] But Dogen uses his creative reading to validate, or at least exemplify, his teaching that the Tentative into the Field Essay, dream-state of the conditioned phenomenal world is exactly the arena for awakening. But here he is furthermore claiming the dream mentioned by the Lotus Sutra as a model for of Foods Body Essay examples, a skillful discourse mode that has recourse to tears, the visionary as a tool for liberation. As in the Lotus Sutra self-reflexive discourse style, the parable expression is itself a skillful mode of reality for Dogen, not separate from concrete phenomena. Dogen continues, People in the past and present mistakenly think that, thanks to the power of expounding this foremost dharma, mere night dreams may become like this dream of buddhas. Thinking like this, one has not yet clarified the Buddha's discourse. Awakening and dreaming from the beginning are one suchness, the genuine reality. The buddha-dharma, even if it were an analogy, is the genuine reality.[33]

For Dogen, the particular events of this dream world are the reality, and The Effects Genetically Foods on the Human, also the skillful discourse, of the awakening of buddhas. The essays of Dogen's Shobogenzo , such as Muchu Setsumu, are sometimes philosophical and elaborative of traditional Buddhist or Zen doctrines, and latent defect, are addressed to a general audience of his contemporaries. In Eihei Koroku , by contrast, Dogen is The Effects Essay, directly addressing his small cadre of monk disciples at Eiheiji, stretching for means to encourage and develop their practice. In this work, the primary available source for his mature teachings, as well as occasionally revealing humor or feelings such as sadness or regret, Dogen at Tentative Look the Field Essay, times offers his own parables, often using fantastic, playful imagery, sometimes expressed as if in dreams. In the following three parables from Eihei Koroku jodos, Dogen's appropriation of The Effects of Genetically on the, Lotus and Mahayana vision is calls, evidenced through the allusions to The Effects of Modified on the Human examples, Mahayana rhetoric or figures in Culture Essay, each of them. In Eihei Koroku jodo number 229, given in 1247, Dogen directly parodies the rhetoric of Mahayana sutras. The millions of billions of transformation bodies [of buddhas] abide throughout a monk's staff, carry water and gather firewood to make offerings to buddhas as numerous as there are sitting cushions, and, on the tip of a whisk, simultaneously all attain unsurpassed complete perfect enlightenment. They are all equally named Broken Wooden Ladle Tathagata, Worthy of Offerings, Omniscient, Foot of Bright Practice, Well Gone One, World Liberator, Supreme One, Strong Controlling Person, Teacher of Humans and Heavenly Beings, World-Honored Buddha. The Country [of this Buddha] is named Clump of Modified Foods on the Human Body, Soil; the kalpa is named Fist.

The duration of the True Dharma Age and Semblance Dharma Age are both twelve hours, and the buddha's longevity is that of a dried turd from three thousand great thousands of worlds. Look Into Essay. Do you all understand? If you state your understanding you are making mistake after mistake. If you say you do not understand, even the five precepts are not maintained. Dogen plays with words here, replacing the conventional sutra rhetoric for a buddha abiding throughout kalpas with his abiding throughout a monk's staff.

Instead of making offerings to buddhas as numerous as the proverbial grains of sand in the Ganges River, Dogen substitutes buddhas as numerous as sitting cushions. Instead of the buddha sitting under the bodhi tree as he attains enlightenment, Dogen has him sitting on top of a whisk. Dogen then applies the standard ten epithets for a buddha, starting with Tathagata, to a new buddha invented here by Dogen, named Broken Wooden Ladle, who might be seen as a reference to The Effects Foods Body examples, all of the humble monks practicing under him at Eiheiji. Continuing with his parody of conventional Mahayana sutra rhetoric, Dogen designates the buddha land of this fabulous new buddha as Clump of soil, his kalpa as Fist, and his longevity as that of a dried turd. Dogen seems to latent defect, mock the standard Mahayana sutra rhetoric, iconoclastically mimicking a formula for describing buddhas used often in the Lotus Sutra , for example in chapters eight and nine on the predictions of future buddhahood of the five hundred disciples, and of learners and adepts.[34] However, Dogen actually is affirming his view of the Lotus Sutra , as originally interpreted by Saicho and of Genetically on the Human examples, expressed by LaFleur, that validates the hurried, world of concrete phenomena as expressive of the of Genetically, essence of responsibility, awakening. The Effects Of Genetically Modified Human Essay. The new buddha is called Broken Wooden Ladle in tear is a by, celebration of a humble implement, to Genetically on the Human Body Essay examples, which Dogen frequently refers in highly exalted terms. For example, in jodo 204 in 1246 he says, If you really know it, the Culture Essay, temple pillars confirm that, and the wooden ladles study together with you. Then he has wooden ladles doing three prostrations and asking a dharma question.[35] Similarly revered in jodo 229, above, are the practice paraphernalia of sitting cushions, a monk's staff, and a teacher's whisk. But in celebrating humble phenomena, Dogen also emphasizes their ephemerality, as he says that the True and The Effects Genetically Foods Human Body Essay, Semblance Dharma Ages of Broken Wooden Ladle Buddha endure merely twelve hours. Although an inspector, intact wooden ladle is a useful implement, here the Buddha is named Broken Wooden Ladle, further emphasizing transiency, and of Modified Foods Human Body Essay, recalling the Zen phrase, the bottom of a bucket broken out, which signifies the letting go of attachments in opening experiences. Dogen's challenge to his monks at the end of the jodo echoes the prominent Ch'an dharma combat rhetoric style of koan anthologies such as the Hekiganroku , Blue Cliff Record.

However, his statement, If you state your understanding you are making mistake after mistake, might also be seen as a rationale for the whole Lotus Sutra self-referential strategy of not explicitly stating the Culture, content of the dharma being celebrated and proclaimed. Simultaneously, there is a mandate for The Effects Modified Foods examples, this Dharma to be actually proclaimed. If you say you do not understand, even the five precepts are not maintained, implies the ethical responsibility not to deny whatever is realized, despite its ephemerality. This may be seen as echoing the slump, frequent theme in the Lotus Sutra of the responsibility of Shakyamuni's disciples to Modified Body, maintain the Lotus Dharma in the future. Again, whether Dogen's rhetoric here borrows more from Ch'an tradition or more from the indirect modes of the Lotus Sutra is idle tears, not the issue. The fact that he uses this style to mimic Lotus Sutra rhetoric, however, does indicate that in this jodo Dogen is concerned and aware of Lotus Sutra discourse style, and of appropriating it rhetorically, at least in part. In the following two examples, Dogen provides fantastic parables that seem to be framed as dreams when he describes them as happening last night.

Whether they were literal dreams or meditative visions is beside the point. As Bernard Faure says, For Buddhists there is no clear distinction between dreams that come during sleep and visions achieved in a waking state, or more precisely during meditation, in a state (samadhi) that, like trance, is often defined as being 'neither sleeping nor waking.'[36] Whether realized in sleep or samadhi, or merely used intentionally as literary devices invoking the visionary qualities of samadhi, Dogen uses these visions to express the dream within the dream, i.e. to reveal awakening amid the phenomenal. The Effects On The Essay. In his Enlightenment Day jodo, number 88, in 1241, Dogen says: Two thousand years later, we are the descendants [of Shakyamuni]. Two thousand years ago, he was our ancestral father. He is muddy and wet from tear poem, following and chasing after the waves. It can be described like this, but also there is the principle of the Way [that we must] make one mistake after another. What is this like? Whether Buddha is present or not present, I trust he is right under our feet.

Face after face is Buddha's face; fulfillment after fulfillment is Buddha's fulfillment. Last night, this mountain monk [Dogen] unintentionally stepped on The Effects Genetically a dried turd and latent defect, it jumped up and covered heaven and earth. This mountain monk unintentionally stepped on it again, and it introduced itself, saying, My name is Shakyamuni. The Effects Of Foods Human Body Examples. Then, this mountain monk unintentionally stepped on his chest, and immediately he went and sat on the vajra seat, saw the An Aspirant’s of Neurology, morning star, bit through the traps and snares of conditioned birth, and cast away his old nest from the past. Without waiting for anyone to peck at his shell from The Effects, outside, he received the thirty-two characteristics common to all buddhas, and together with this mountain monk, composed the following four line verse: Stumbling I stepped on his chest and his backbone snapped, Mountains and rivers swirling around, the dawn wind blew. Penetrating seven and accomplishing eight, bones piercing the heavens,

His face attained a sheet of hurried definition, golden skin. In this jodo Dogen describes a dream-like fantasy in which he accidentally steps on a piece of shit, and in accord with Yun-men's utterance often cited by Dogen, it jumps up and declares itself to of Genetically Modified Foods Human examples, be Shakyamuni. This vision increases the concrete slump, apparent disrespect for Buddha in Yun-men's utterance, as Dogen again steps on his back (albeit again accidentally), even after the dried shit identifies himself as Shakyamuni. But Dogen uses this scatological vision not to degrade, but rather to further celebrate Buddha, by declaring that upon of Genetically Modified Foods on the Essay examples being stepped on, He went and sat on the vajra seat, saw the morning star, bit through the traps and snares of conditioned birth, and cast away his old nest from the past. Here Dogen skillfully proclaims and tests, celebrates, non-explicitly, one of the major revelations of the Lotus Sutra , that of the Buddha's life-span enduring over The Effects of Genetically Human Body Essay, inconceivable ages (mentioned above in connection with Dogen's reference in Expressing the Dream Within the latent defect, Dream.) In chapter sixteen, Shakyamuni reveals that his archetypal story of his home-leaving and of Genetically Modified Foods on the Human Body Essay examples, awakening is demonstrated simply as a skillful mode. The effect of this dream parable of latent defect, Dogen is to reinforce the story about skillful modes in The Effects of Modified Foods Human Body Essay examples, chapter sixteen by describing Buddha and his awakening process as still omnipresent, last night right at Eiheiji, and even in excrement.

Dogen's dream story also echoes the latent defect, Lotus Sutra , chapter four, parable of the prodigal son, who can only come to realize his fundamental endowment after years of shoveling manure in his father's field. As Dogen says in the introduction to his parable, even Shakyamuni is muddy and wet from following and chasing after the waves. Dogen's further introductory statement, Whether Buddha is present or not present, I trust he is right under our feet, echoes the Lotus Sutra parable about the The Effects Genetically Human Body, ragged beggar unknowingly having the dharma jewel sewed within his robe. It further suggests the image in chapter fifteen of myriad bodhisattvas suddenly springing forth from beneath the tests, ground under our feet, which represents the omnipresence of the bodhisattva potential in the ground of concrete phenomena. Having venerated Shakyamuni Buddha via seeming desecration in this last jodo parable, in Eihei Koroku jodo number 123, given in 1243, Dogen describes another dream vision, this one seeming to poke fun at Avalokiteshvara, the bodhisattva of compassion. One sheet of dull stubbornness is three inches thick. Three lengths of upside-downness is five feet long.

Last night, this mountain monk [Dogen] struck the empty sky with a single blow. My fist didn't hurt, but the empty sky knew pain. A number of sesame cakes appeared and rushed to become the Foods on the Human Body Essay, faces and eyes of the great earth. In the mock creation myth in the introduction to the jodo, Dogen punches out the latent defect, empty sky. Then with bravado akin to such classic Ch'an masters of fisticuffs as Lin-chi or Te-shan (Rinzai and Tokusan in Japanese), Dogen declares that his fist didn't hurt, but the on the, sky, which can also be read as emptiness itself, knew pain. Like the skillful fists of Lin-chi or Te-shan, with their constructive impact on their monk trainees, Dogen's fist brings forth a cascade of sesame cakes, which in turn shower down as thousands of faces and latent defect, eyes.

The several references to the koan lexicon by Dogen in this jodo include case 78 of the Shoyoroku Book of Serenity anthology. When asked by The Effects Modified Foods Human examples, a monk about talk transcending buddhas and ancestors, Yun-men answers, Sesame cake.[37] In case 82 of the Shoyoroku, the association of Yun-men with sesame cakes continues when he says, The Bodhisattva Avalokiteshvara brings money to hurried definition, buy a sesame cake: when he lowers his hand, it turns out to be a jelly-doughnut.[38] This story must have inspired Dogen's vision of Avalokiteshvara striving to purchase sesame cakes. But Dogen envisions the Modified Foods Human Essay examples, sesame cakes as transformed into dynamically active eyes and faces rather than jelly-doughnuts, which are still mere commodities, even if richer than sesame cakes. As Dogen's parable in jodo 123 unfolds with dream-like narrative, someone shows up who wants to buy the concrete tests, sesame cakes (transformed into faces and eyes). When Dogen inquires, the person identifies himself as Avalokiteshvara, just as the piece of shit in the previously discussed dream parable identifies himself as Sakyamuni.

Presumably Avalokiteshvara is trying to acquire from Dogen the eleven faces and thousand eyes for his hands as depicted in one of the bodhisattva's foremost iconographic forms.[39] With these multiple perspectives, the The Effects of Genetically Modified Foods on the Human Body, bodhisattva of compassion can fulfill the skillful means that he is known for, as seen in his diversity of forms in chapter twenty-five of the Lotus Sutra . When Avalokiteshvara further identifies himself by the very common Chinese names Ch'ang and Li, this represents Avalokiteshvara as an ordinary person. Even in a dream (or a literary discourse he frames as visionary or dream-like), Dogen is thereby implicitly affirming practice in Culture, the mundane world and the immanent presence of compassion. In Expressing the Dream Within the Dream, written the year before the parable in jodo123, Dogen declares that, The expression of the The Effects of Human examples, dream within the concrete tests, dream is the thousand hands and eyes of Avalokiteshvara that function by many means.[40] Here he explicitly denotes the discourse mode, the expression itself, as an aspect or example of Avalokiteshvara's skillful means. The parable itself ends with Avalokite§vara expressing his commitment and determination to obtain the eyes and faces (formerly sesame cakes), with which to proceed with his work of The Effects of Genetically Modified on the, compassion, whether or not he has any money. In his own concluding commentary, Dogen adds, When Avalokiteshvara Bodhisattva makes an tear is a, appearance, mountains and rivers on of Genetically Human Essay examples the great earth are not dead ashes. Here Dogen emphasizes the idle poem by, dynamic, liberating quality of the world of concrete phenomena. Of Foods On The Human Essay. For Dogen, the whole world and its components, even the dreams within a dream, are the vital functioning of awakening, like the conjured city in the Lotus Sutra parable, assisting those on the path.

Dogen's jodo concludes with a further affirmation of the enlightening potency of the phenomenal world, You should always remember that in the third month the concrete, partridges sing and The Effects Genetically Foods Human Essay examples, the flowers open. Look The Field. Here the emergence of vitality in spring, and The Effects Genetically Human Body Essay examples, also its very invocation, functions skillfully as an encouraging metaphor for the enduring potential of An Aspirant’s Look the Field Essay, awakening in his disciple audience. The parables in the Lotus Sutra may lack Dogen's humorous irony and visionary whimsy. But in The Effects of Body Essay examples, accord with LaFleur's account of the Culture, function of those parables, Dogen uses his dream parables similarly as skillful modes with which to encourage his monks' engagement with and of on the Human examples, affirmation of the complete reality of the world of An Aspirant’s Tentative Look the Field of Neurology Essay, concrete phenomena in spite of the fact that they are impermanent. In his Eihei Koroku , Dogen relates parables that echo the function of the parables in the Lotus Sutra by demonstrating the presence of wondrous dharma, right in the phenomenal world and in the midst of karmic consciousness. While such parables are occasional, and certainly not Dogen's major mode of literary expression, they do exemplify his borrowing of Lotus Sutra styles in his discourse. More significantly than in Dogen's occasional use of parables, the The Effects of Foods Human Essay examples, profuse self-referencing of the Lotus Sutra and the complex, skillful impact of this self-reflexive discourse serves as one major resource or model for Dogen's style of proclamation. Hurried. Dogen follows the of Genetically Foods Human Body examples, Lotus Sutra self-referential style in An Aspirant’s Tentative into, various of The Effects of Genetically Human Body Essay, his rhetorical modes to proclaim and celebrate a teaching that often remains unstated, but which may be more provocative because of this quality of the non-explicit. Dogen's self-referential, proclamatory discourse (at least in some part borrowed from the Lotus Sutra discourse style), used as a mode with which to concrete, express and exemplify radical nondualism, becomes a model for Soto Zen expression and practice, supporting prominent Soto teachings such as the oneness of practice-realization. This essay has focused on suggesting some of the aspects of Dogen's appropriation of Lotus Sutra styles of rhetoric in his own discourse.

Much more can be said about his inclusion of its doctrinal contents in his own teaching. Still, Dogen's primary literary source by far was the vast Ch'an koan literature, which he was introducing as a new, foreign language into Japan, and which he had mastered to an astonishing degree. The Effects Body Essay. In his prominent use of the Lotus Sutra , on the other hand, he was referencing the Buddhist text that was perhaps most familiar to his Kamakura audience. His wide use of the Lotus Sutra raises many questions. His devoted dissemination of the alien koan literature suggests that he was not citing the Lotus simply to match audience expectations or familiarities. Some aspects of Lotus teaching were clearly useful to latent defect, legitimatization of Zen positions.

For example, he widely quotes the of Genetically Foods Body Essay, passage in Kumarajiva's translation of chapter two of the sutra that, Only a buddha together with a buddha can fathom the Reality of All Existence.[41] Dogen appropriates this saying for his Shobogenzo essay Yuibutsu Yobutsu, Only Buddha and idle is a, Buddha, as support for the Zen Dharma transmission tradition.[42] The Lotus Sutra focus on Shakyamuni also fits with the main buddha figure in Zen, rather than the Buddhas Amida or Vairocana venerated in Genetically Foods on the Body, the contemporary Pure Land and Esoteric (and Kegon) movements. But perhaps most fundamentally, the significant presence of the hurried definition, Lotus Sutra in Dogen's teaching content and in his style of Human Body Essay examples, presentation may serve to definition, remind us of the substantial underpinnings of Mahayana thought and Essay examples, practice in Soto Zen teachings. [1] For a discussion of some Lotus Sutra references by Dogen, and a list of some such citations, see Kagamishima Genryu, Dogen zenji to in'yo kyoten-goroku no kenkyu (Tokyo: Mokujisha, 1965), pp. 121-137; 217-219. A list of hurried definition, Lotus Sutra references in Dogen's Shobogenzo appears in Gudo Wafu Nishijima and Chodo Cross, trans. Master Dogen's Shobogenzo , Book 1 (Woods Hole, Mass.: Windbell Publications, 1994), pp. Genetically Modified On The. 293-321. [2] Ryuichi Abe and Peter Haskell, trans. with essays. Great Fool: Zen Master Ryokan; Poems, Letters, and Writings (Honolulu: University of Hawai'i Press, 1996), p.xiii. See also p. 21.

[3] For background on hongaku thought, see Ruben Habito, Originary Enlightenment: Tendai Hongaku Doctrine and concrete tests, Japanese Buddhism (Tokyo: The International Institute for Buddhist Studies, 1996); and Genetically Modified on the Body Essay, Jacqueline Stone, Original Enlightenment and the Transformation of Medieval Japanese Buddhism (Honolulu: University of Tentative into, Hawaii Press, 1999). For Saicho's appropriation of The Effects Genetically Modified Foods on the Body examples, sokushin jobutsu from the Lotus Sutra story about the An Aspirant’s Look into Essay, Dragon King's daughter, see Paul Groner, The Lotus Sutra and Saicho's Interpretation of the Realization of Buddhahood with This Very Body, in George J. Tanabe, Jr., and Willa Jane Tanabe, editors. Of Modified Foods On The Human Essay. The Lotus Sutra in Japanese Culture (Honolulu: University of Hawaii Press, 1989), pp. 53-74. [4] For an English translation of Hokke-Ten-Hokke, see Nishijima and Cross, Master Dogen's Shobogenzo , Book 1, pp. 203-220. I have also referred to a translation by latent defect, Kazuaki Tanahashi and Michael Wenger, from the forthcoming Beyond Thinking , edited by Kazuaki Tanahashi. [5] Dogen appropriation of the Lotus, especially in The Effects Modified on the, terms of The Muslim Culture Essay, its use in Foods on the Human Body examples, Dogen's fundamental world-view underlying his praxis, will be further detailed in my forthcoming dissertation: Visions of Awakening Space and Time: The Bodhisattvas' Earth Emergence and tests, the Inconceivable Life-Span in of Genetically Foods on the Human examples, the Lotus Sutra , and their Impact in Dogen's Teachings. [6] Steven Heine.

Dogen and the Koan Tradition (Albany: State University of New York Press, 1994). [7] See Yasunari Kawabata, Japan the An Aspirant’s Tentative Look Essay, Beautiful and Myself, trans. Edward Seidensticker (Tokyo: Kodansha, 1969); and The Effects Foods on the Body Essay, Steven Heine, The Zen Poetry of Dogen (Boston: Tuttle Publishing, 1997). [8] See Yifa, The Rules of latent defect, Purity for the Chan Monastery: An Annotated Translation and Study of the Chanyuan Qinggui. Ph.D.

Dissertation at The Effects of Foods Body Essay examples, Yale University, 1996. The Chanyuan Qinggui was a major influence, quoted extensively by Dogen, in inspector calls responsibility, his Eihei Shingi. See Taigen Dan Leighton and Shohaku Okumura, Dogen's Pure Standards for The Effects of Genetically Modified Foods on the Human Body, the Zen Community: A Translation of Eihei Shingi (Albany: State University of New York Press, 1996). [9] See, for examples, Edward Conze, trans., The Perfection of Wisdom in Eight Thousand Lines its Verse Summary (Bolinas: Four Seasons Foundation, 1973), pp. 15, 120-121; and Buddhist Text Translation Society, Sutra of the Past Vows of Earth Store Bodhisattva (Talmage, Cal.: Dharma Realm Buddhist University, 1982), pp. 69-71, 89-92, along with many other passages. [10] I am using the Chinese /Japanese edition of Kumarajiva's translation, Myoho Rengekyo, 3 vols. (Tokyo: Iwanamai Bunko, 1996). Tear Idle Tears Poem By. English translations consulted are Leon Hurvitz, trans. Scripture of the Lotus Blossom of the The Effects Modified Essay, Fine Dharma (New York: Columbia University Press, 1976); Bunno Kato, Yoshiro Tamura, and Kojiro Miyasaka, trans. The Threefold Lotus Sutra: Innumerable Meanings, The Lotus Flower of the Wonderful Law, and Meditation on the Bodhisattva Universal Virtue (New York: Weatherhill, 1975); and Burton Watson, The Lotus Sutra , (New York: Columbia University Press, 1993). [11] Introduction to George J. Tanabe, Jr., and Willa Jane Tanabe, The Lotus Sutra in Japanese Culture, p. Hurried Definition. 2. [12] Jodo, literally ascending the hall, referred to here as dharma discourses, were the major form of presentation in Sung China Ch'an temples.

They were often quite brief, given in the Dharma Hall with the teacher on the high seat on the altar and of Genetically Modified on the Essay examples, with the monks standing. Apparently they were the latent defect, teaching form eventually favored by Dogen, since he nearly stopped writing the longer essays of The Effects Modified Foods on the Human Body examples, Shobogenzo after 1244, but continued using the formal Jodo talks, which were recorded in Eihei Koroku , in training his monks at Eiheiji before his death in 1253. [13] All references to Eihei Koroku are from the earlier monkaku version (rather than Manzan's later edition) in inspector calls responsibility, Kosaka Kiyu and Suzuki Kakuzen, eds. Dogen Zenji Zenshu. vols. 3 and 4 (Tokyo: Shunjusha, 1989). All translations in this essay are from Taigen Dan Leighton and Shohaku Okumura, trans. Dogen's Extensive Record: A Translation of Eihei Koroku (Boston: Wisdom Publications, forthcoming). [14] Yun-men's response to a monk's question, What is of Modified Foods on the Human, Buddha? of kanshiketsu has been interpreted legitimately either as a dried shitstick, a standard implement that was used as we now use toilet paper, or simply as a dried turd, an interpretation derived from Chuang-tzu's usage, which will be used as the translation in other jodo below, according to varied contexts. Tentative Look The Field. Yun-men's equation of Buddha with kanshiketsu appears, for example, in Mumonkan , case 21.

See Yamada, Gateless Gate, pp. 109-112. For a discussion of Dogen's likely interpretation of Tung-shan Shou-ch'u's utterance as sesame rather than the usual translation of flax, see the note to Dogen's reference to it in Tenzokyokun in Leighton and Okumura, Dogen's Pure Standards for the Zen Community, P. Modified On The Body Examples. 56. This story appears, for example, in case 12 of Hekiganroku and in case 18 of Mumonkan . See Thomas Cleary and J.C. Cleary, trans. The Blue Cliff Record (Boston: Shambhala, 1977), pp. 81-87; and Koun Yamada, Gateless Gate (Los Angeles: Center Publications, 1967), pp. 96-99.

[15] See Burton Watson, The Lotus Sutra, p. Slump Tests. 45; Hurvitz, Scripture of the Lotus Blossom of the Fine Dharma, p. The Effects Human Essay Examples. 45; Kato, Tamura, and Miyasaka, The Threefold Lotus Sutra, p. 74. [16] William LaFleur, The Karma of Words: Buddhism and the Literary Arts in Medieval Japan (Berkeley: University of California Press, 1983), p. Tentative Look Into Of Neurology. 87. [17] Hurvitz, Scripture of the of Genetically Modified Essay, Lotus Blossom of the Fine Dharma, pp. 29-30. [18] LaFleur, The Karma of Words, p. 87. [19] Jacqueline Stone, Original Enlightenment and the Transformation of Medieval Japanese Buddhism, p. The Muslim. 14. [20] See Norman Waddell and Modified Foods on the Human examples, Masao Abe, trans. An Aspirant’s Look Into The Field Of Neurology. The Heart of Shobogenzo (Albany: State University of New York Press, 2002), pp. 59-98. [21] George J. Tanabe, Jr., Myoe the Dreamkeeper: Fantasy and Knowledge in Early Kamakura Buddhism. (Cambridge: Harvard University Press, 1992), p. 9. [24] See Taigen Dan Leighton and Kazuaki Tanahashi, trans.

Within a Dream Expressing a Dream, in Genetically Foods Body, Kazuaki Tanahashi, editor, Enlightenment Unfolds: The Essential Teachings of Zen Master Dogen (Boston: Shambhala, 1999), pp. Inspector. 165-172. [27] Kazuaki Tanahashi, editor, Moon in The Effects Foods Human Essay, a Dewdrop: Writings of Zen Master Dogen (San Francisco: North Point Press, 1985), p. 69. [28] For Myoe's dream journal, and commentary, see Tanabe, Myoe the Dreamkeeper, cited above, and Hayao Kawaii, The Buddhist Priest Myoe: A Life of Dreams, translated with introduction by Mark Unno, (Venice, Ca.: The Lapis Press, 1992). [29] See Bernard Faure, Visions of Power: Imagining Medieval Japanese Buddhism (Princeton: Princeton University Press, 1996). [30] For further discussion of the stereotypical distinctions between Keizan and Dogen, see Faure, Visions of Power, pp. 3-4, 211-215. [31] Tanahashi, Enlightenment Unfolds, pp. 170-171; and Hurvitz, Scripture of the Lotus Blossom of the inspector, Fine Dharma, pp. The Effects Of Genetically Human Essay Examples. 223-224.

[32] I am indebted for clarification of the difference in Dogen's reading of this passage, and for many other suggestions for into the Field of Neurology, this paper, to the kind response commentary of Jan Nattier. [33] Tanahashi, Enlightenment Unfolds, p. The Effects Of Foods On The Human. 171. [34] The Lotus Sutra includes a number of variations on the full formula for descriptions of latent defect, buddhas and their buddha-fields parodied by Dogen, also including versions in of Genetically Modified examples, chapter twelve on Devadatta and hurried definition, chapter twenty-three on the Bodhisattva Medicine King. On The Human Body Essay. One of the versions closest to the full formula parodied by Dogen is the description of Ananda's prediction in chapter nine. See Hurvitz, Scripture of the Lotus Blossom of the latent defect, Fine Dharma, pp. 168-169. [35] Dogen refers frequently to ladles in Eihei Koroku , used as a term for reliable practice implements, and Foods on the Essay examples, sometimes for practitioners themselves. For other examples, jodo 219 in latent defect, 1247 begins, Abundant with ten thousand virtues, the sitting cushions and wooden ladles are dignified. In jodo 320 in 1249, Dogen refers to Shakyamuni himself as, The wooden ladle at Vulture Peak.

[36] Faure, Visions of Genetically on the Body, Power, p. 116. [37] See Thomas Cleary, trans. Book of Serenity (Boston: Shambhala, 1998; originally published by Hudson, N.Y.: Lindisfarne Press, 1990), pp. 332-334. [39] For the iconographic forms of Avalokiteshvara Bodhisattva, see Taigen Daniel Leighton, Bodhisattva Archetypes: Classic Buddhist Guides to Awakening and latent defect, their Modern Expression (New York: Penguin Arkana, 1998), pp.

159-170. [40] Tanahashi, Enlightenment Unfolds, p. 169. [41] See Kato, Tamura, and Miyasaka, The Threefold Lotus Sutra, p. Of Modified On The Examples. 52. Compared to the Sanskrit original, which simply denotes plural buddhas, Kumarajiva's rendition emphasizes the relational aspect of hurried definition, a buddha together with a buddha. [42] See Tanahashi, Moon in a Dewdrop, pp.

161-167.