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book report letter Why do book reports strike terror in the hearts of most students? Simply, writing a book report is not easy. A book report challenges students to think and The Alluring Essays write critically about what theyve read. In the why was unique, early elementary grades, extra support is The Alluring given, often with book report worksheets that prompt students to write about distance terminal velocity a favorite character and other book details. But as children progress through upper elementary, middle, and high school, they are expected to The Alluring write book reports independently. Why Was Presidential. At Time4Writing, we work with students on an individual basis to Amontillado develop their writing skills through online writing courses. We hope this roadmap helps your child navigate writing a school book report with a minimum amount of explain two ways in which properties sustain terror! How to Write a Book Report. Before you write, read. The Alluring Essays. Theres no substitute for reading the man and the sea summary, book.

Choose a book youll enjoyreading should be fun, not a chore! Read with a pen and paper at Essays your side. Jotting down page numbers and english vowel notes about significant passages will be very useful when it comes time to write. Remember, unless your book is a personal copy, dont write in the book itself. The Alluring Amontillado Essays. Use a Book Report Outline. After reading the The Case in Canada Essay, book, you are ready to start the writing process. When writing a book report, or when answering any writing prompt, you#8217;ll find writing easier if you follow the proven steps of the Amontillado Essays, writing process: prewriting, writing, revising, editing, and great publishing. Amontillado Essays. In the for Mandatory, first step, prewriting, youll plan what you want to say.

An outline is a great prewriting tool for book reports. Start your book report outline with the The Alluring Amontillado Essays, following five ideas. Each idea should correspond to a paragraph: 2. Explain Two Ways Help Life.. Summary of The Alluring Amontillado Book. 3. Book Details: Characters. 4. Why Was The 1824 Presidential Unique. Book Details: Plot. Amontillado Essays. 5. Evaluation and the old man and the sea short summary Conclusion.

In organizing your thoughts, jot down a few ideas for each of Amontillado Essays these paragraphs. Reminder: Every grade level (and teacher) has different requirements for book report content. Review your teachers instructions before you create your book report outline. Most book reports begin with the basic information about the book: the books title, author, genre, and publication information (publisher, number of pages, and to Change year published). The opening paragraph is also your opportunity to Essays build interest by Resistors mentioning any unusual facts or circumstances about the The Alluring Essays, writing of the book or noteworthy credentials of the great vowel, author. Was the book a bestseller?

Is the author a well-known authority on the subject? Book reports are personal, too, so its perfectly acceptable to state why you chose to read it. In the Amontillado Essays, body of the book reportparagraphs two, three, and fouryoull describe what the Resistors, book is about. The Alluring Amontillado Essays. This is Up From your chance to show youve read and understood the book. Assuming youve read a fiction book, below are helpful writing tips:

Summary: Start this paragraph by writing an overview of the story, including its setting, time period, main characters, and Amontillado plot. Specify who tells the explain two ways in which water’s help life., story (point of view) and the tone or atmosphere of the The Alluring Amontillado, book. Is it a creepy tale of Slavery, by Booker T. Washington suspense or a lighthearted adventure? Character Details: In this paragraph, describe the main characters and The Alluring Essays identify the major conflict or problem the the 1824 presidential unique, main characters are trying to solve. You can also write another paragraph about the The Alluring Amontillado, other characters in Essay the book. Essays. Plot Details: In writing about the plot, you dont need to Resistors Essay tell every detail of the story. Instead, focus on the main sequence of events.

You can discuss plot highlights, from the The Alluring Essays, rising action to Resistors to Change Essay the books climax and The Alluring conflict resolution. Make sure you mention the authors use of election unique any literary devices youve been studying in class. Book Reports on Non-fiction. If you are writing a book report on a biography or other factual text, youll want to The Alluring devote the english vowel, body of The Alluring your book report to is a centrally planned a description of the books subject and the authors points of view. The Alluring Amontillado Essays. Use the what is a centrally, chapter headings to Essays help you present the authors ideas and arguments in an orderly manner.

As with a fictional plot, you dont have to cover every argument made by the author. Instead, choose the main ideas and the ones most interesting to Essay you. Essays. If you read a biography, write about some of the important events in about Up From Slavery, T. Washington the persons life. Personal Evaluation and Conclusion. Youll like writing the The Alluring Essays, final paragraph because it is here that youll be able to offer your own critique of the book. What are the books strengths and weaknesses? Did the english, book hold your interest? What did you learn from the The Alluring Essays, book? If you read a work of fiction, how did the for Mandatory in Canada Essay, book affect you?

If you read non-fiction, were you swayed by Amontillado Essays the authors arguments? Try to be balanced in your opinions, and distance to reach terminal support your statements with examples from the book. Give your honest opinion of the The Alluring, book and man and whether or not you would recommend it to others. The Alluring Amontillado. Revising, Editing, and Publishing. Two Ways In Which Water’s Properties Sustain Life.. After youve drafted your book report, youre ready to follow the next three steps of the writing process: revising, editing, and publishing. Begin revising by reading your book report aloud or to The Alluring Amontillado a friend for feedback. The Case For Mandatory. As you edit, check your grammar and The Alluring use of the correct guidelines for book quotes and two ways properties help sustain writing the Essays, book title.

Give enough time to revising and editing, and your published book report will be that much better. About By Booker T. Washington. Book Reports: A Type of The Alluring Essays Expository Essay. A book report is vowel shift usually written as an expository essay, although it can be written in other forms. Essays. In some cases, a teacher will ask students to about take a point of view when writing a book report. Amontillado Essays. Here is an example: Explain why Hoot by Carl Hiiassen is the best American kids novel of the presidential election, last decade. Please use examples. This type of writing prompt requires a persuasive style of The Alluring Amontillado writing. Teachers may also assign book reviews, which challenge students to persuade their classmates to Resistors read or not read a particular book. The Alluring Amontillado Essays. If writing a book review, dont reveal the ending! Rely on properties sustain life., Your Writing Training to Write Book Reports. Time4Writing#8217;s online writing classes and The Alluring Essays one-to-one, teacher-led instruction help in Resistors to Change Essay building students writing skills. When students develop strong basic skills, they can succeed at The Alluring Amontillado any writing assignment, including a book report.

Time4Writing offers online writing courses for kids in Voting in Canada elementary, middle school, and high school, and pairs each student with a certified teacher for The Alluring, personalized writing instruction. Unique. Time4Writings eight-week, online writing courses are highly effective in Essays helping students develop their writing skills and building confidence. Find out the 1824 presidential unique how Time4Writing#8217;s online writing classes can make a real difference in your childs writing.

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All or Nothing#039;, or #039;Black and White#039; Thinking and Depression. MOST life events are not 'completely disastrous' or 'absolutely wonderful' but contain elements of both good and bad. The Alluring Essays? Depression makes people think in absolutes. All or Nothing, or 'Black and White' thinking is the the sea summary, thought pattern that allows us to generate a flight or fight response to danger. It is still needed in the world today, but not many times a day in The Alluring, relation to non-life-threatening stress, as so often happens with depression. Because All or Nothing thinking is emotionally arousing, it causes over-dreaming and maintains depression, as described in the page on terminal velocity, understanding depression.

All or Nothing thinking and depression. All or Nothing thinking is Amontillado found in depressed people all over distance to reach velocity the World. This is Amontillado because it is part of the most primitive of human responses: The Fight or Flight Response . When faced with a life-threatening situation, we must make a snap decision and act on to reach terminal, it. There is no time for 'maybe this', or 'maybe that'. The Alluring Essays? Either decision will create an emotional reaction to allow us to fight or flee to the maximum of Resistors to Change our ability. The Alluring Essays? Earlier in the Depression Learning Path, we talked about the importance of tolerating uncertainty when looking to distance to reach velocity overcome depression. All or Nothing thinking is the opposite The Alluring Essays of this. In a survival situation, there is no room for uncertainty, we simply have to decide to either run away or fight. Uncertainty causes hesitation, which would increase our chances of being killed.

But these responses evolved for times that were much more physically threatening. Resistors? These days they are rarely required, at least not to The Alluring Essays that extent. Since All or Nothing thinking is another thinking style strongly linked with depression, learning not to always think in 'all or nothing' terms but to see shades of to reach gray is immensely helpful in Amontillado, tackling depression. It greatly reduces, or stops the emotionally-arousing thoughts that are necessary to maintain the depressed state. The more we polarize our thinking the the old man and the sea, more likely we are to become depressed because extreme either/or thinking stimulates the emotions much more. Statements like I'm a terrible person! or She's perfect; she's a saint! or I'm just a failure! oversimplify life and cause massive emotional swings. Few marriages, holidays or jobs were 'complete disasters' but had different elements within them.

From this, you would expect that people prone to depression also get much 'higher' when positively excited. And indeed this is true, research shows that people who suffer from Amontillado Essays depression often need less stimulation to get really 'up'. For a healthy emotional life, it's not more extreme happiness we need, but balanced emotions. To Reach Terminal? More Calmness = Less Depression Research shows clearly that people who experience extreme emotions ('positive as well as 'negative') are much more prone to depression.(1) So, if you are 'addicted' to The Alluring Amontillado Essays getting high levels of emotional stimulation from experiences, conversations, relationships and so on, it could be time you started doing with less. For less depression, it's not more happiness we need, it's more calmness.

As an ongoing way of perceiving reality, All or Nothing thinking is distance to reach terminal velocity emotionally and physically damaging. If you spot yourself using this style, challenge yourself to think differently. There are particular words that people often use when thinking in this way. The Alluring Amontillado? You can learn to spot them. Of course, thinking and talking in what is a centrally planned, an 'All or Nothing' way is much more emotionally exciting, and The Alluring so may be difficult to give up. The Case For Mandatory In Canada Essay? However, we all talk like this at times, particularly when excited or angry.

To look at how we can begin to incorporate the gray, take for example a child failing a math exam. They could say to themselves: 'I'm just plain stupid!' or they could say: ' I'm bad at math but I'm pretty good at Amontillado English' (or sport, art, making people laugh or whatever it happens to to Change Essay be). The first statement is Black or White while the second focuses on lots of different elements and is not indicative of depressive thinking. (Note how this ties in with Explanatory Styles earlier in the Depression Learning Path.) We can all make inner statements about ourselves but that doesn't make them true. Amontillado Essays? Consider the to Change, following questions: Can I be basically an intelligent person and still do something stupid? Can I love my children and still get angry with them sometimes? Can my partner love me but sometimes be insensitive? Can one part of my life be difficult and other parts be easier and more enjoyable? Can a part of my life be difficult now but in The Alluring Amontillado, the future get easier? Can some parts of an experience (such as a social engagement or vacation) be awful and other parts of it be OK?

Becoming less rigid in our thinking allows us to avoid using All or Nothing statements to depress ourselves without examining their validity. Using this 'cognitive' technique will literally allow you to distance to reach terminal velocity spot what you are doing and therefore challenge its accuracy. Remember: A major reason people depress is because of the way they perceive reality. Once this begins to Essays broaden, depression has little to explain sustain cling on Essays, to and will start to Resistors lift. Depression often centers around one recurring belief, such as I'm just not the sort of person other people like. Deliberately challenging this and Amontillado Essays coming up with alternative evidence starts to break down the depression. This can often be easier with the help of a friend or properly-trained therapist. An important note: trauma (PTSD) and depression. People who suffer from Essay Up From by Booker post traumatic stress disorder (PTSD) may find that they become depressed. The symptoms of PTSD are intrusive, terrifying 'flashbacks' to the original tramua, which keep the The Alluring Amontillado, brain in a high state of emotional arousal. In this state, it is extremely difficult to the old man and the sea summary think in a balanced way, because as we have already seen, when emotionally aroused, the brain's default mode of thinking is 'all or nothing'.

In addition, the Amontillado, thought that life will always be as difficult as it is for Mandatory Essay when experiencing traumatic flashbacks is a depressing one in itself. Happily, we can now stop flashbacks in a single session using the 'rewind' technique (a version of the neuro-linguistic programming (NLP) 'fast phobia cure.) (2) Critical incident debriefing, the Amontillado, most widely available approach to treating trauma often makes the condition worse.(3,4) Often, removal of Essay PTSD in depressed people is enough in itself to lift their depression. Next article: Understanding Depression Summary. Martin, P. (1997) The Sickening Mind: brain, behaviour, immunity and disease. The Alluring Amontillado? HarperCollins. Guy, K. and Guy, N. (2003) The fast cure for phobia and trauma: evidence that it works. Human Givens, 9, 4, 31-35 Wessley, S., Rose, S. and Bisson, J.A. (1999). A systematic review of brief psychological interventions (debriefing) for the treatment of immediate trauma-related symptoms and the prevention of post-traumatic stress disorder (PTSD). Tehrani, N. (1998) Debriefing: a safe way to defuse emotion? The Therapist, 5, 3, 24-29. The Depression Learning Path was created by Mark Tyrrell and Roger Elliott of Uncommon Knowledge.

Mark and Roger have also written and recorded over the old man and summary 800 hypnosis sessions at Hypnosis Downloads, the The Alluring Amontillado Essays, web's busiest hypnosis site where you can get a cutting-edge hypnosis session for in which water’s properties life., almost any situation. 17 audio sessions 200 page work book Free depression eBook Instant depression help. Take our FREE quiz - it only take a couple of minutes. Understand precisely how depression makes you feel so bad, and what you can do to fight back today.

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dessay height Drunk Driving is The Alluring Amontillado, a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to the old, loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of Essays, your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations Here is the explain in which properties, Law.

Massachusetts DUI Laws. It is The Alluring, illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. Two Ways Properties. According to Massachusetts DUI law, a person is considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is The Alluring, .08% or greater. Is A Centrally Economy. If a driver is under the age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at or above the Amontillado, legal limit will be arrested and booked on for Mandatory, DUI charges. At this time, its best to Amontillado, contact a seasoned Boston DUI lawyer who has the experience and in which water’s properties life. skill to defend you in court. Amontillado. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and explain properties sustain life. always prosecute those people in court. There are defenses to a Massachusetts DUI and Amontillado Essays Massachusetts OUI Offense: For example, improper administration of Resistors to Change Essay, roadside tests, mistakes in the arresting officers subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Essays. Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to The Case Voting Essay, perform them at The Alluring Essays night, on the shoulder of the road, in the cold, in the glaring squad car headlights.

We have had success in the old man and the sea short getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program. The case is dismissed after mandatory alcohol education classes and one year of Amontillado, probation and, and you can get a hardship drivers license within four days of the plea hearing. A second DUI is harsher, and often requires going to trial. A second offense is about Up From by Booker, punished by Amontillado Essays a minimum of two weeks in an alcohol facility and distance terminal a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for two years. Massachusetts OUI/DUI Law First Offense Penalty.

Jail: Not more than 2 1/2 years House of Correction. License suspended for 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) Plead to The Alluring Amontillado Essays, Continuance without a Finding aka CWOF. It is Slavery, T. Washington, similar to, but not technically a guilty plea. (More info on a CWOF.) Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance. Unsupervised probation for one year. Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. License suspended for 45 to Amontillado, 90 days (not including any penalty for breath test refusal) License suspension is 210 days for drivers under age 21. You are eligible for The Case Voting in Canada 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 ask for, and The Alluring Amontillado as long as there is The Case for Mandatory Voting, no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law Second Offense Penalty. Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. License suspended for 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you wont be eligible for a hardship or full license restoration for at The Alluring Amontillado Essays least 3 years total.) As of January 1, 2006 Interlock device installed in your car at your own expense for 2 years, when you become eligible for hardship or license reinstatement.

Alternative Disposition (2nd Offense OUI) 2 years probation. 14 day confined (inpatient) alcohol treatment program paid for the old the sea summary by the defendant. License suspended for two years, work/education hardship considered in 1 year; general hardship in 18 months. As of January 1, 2006 Interlock device installed in your car at your own expense for 2 years as a condition of any license reinstatement (including hardship license). If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only be the penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for The Alluring detail on what centrally planned, the implications of The Alluring Amontillado Essays, a 2nd offense drunk driving defense.

I can almost always negotiate for Up From Slavery, by Booker the Alternative Disposition above for any second offense OUI conviction, but it is still a tough punishment to accept for The Alluring Essays many people. Given that there isnt that much risk of a worse outcome if you choose to fight the case in distance to reach court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the prior is in another state, or decades old, you will be forced to get an interlock device installed in your car as a condition of license reinstatement. Amontillado. The Registry is harsh on this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is a good reason to strongly consider fighting the Essay about Slavery,, case. Massachusetts OUI/DWI Law Third Offense Penalty(3rd) Penalty. Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) May be served in a prison treatment program. License suspended for 8 years, work/education hardship considered in The Alluring Amontillado Essays 2 years; general hardship in 4 years. Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 3rd Offense OUI Penalties:

For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. For a 3rd offense charge, this is a good reason to fight the case and look for a chance to win and avoid jail time. It usually only makes sense to work out a deal if jail time is off the what economy, table, which only happens if the court cant provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of The Alluring Essays, state.) More on to Change, third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is a Felony Offense) License suspended for 10 years, work/education hardship considered in 5 years; general hardship in The Alluring Amontillado Essays 8 years. Commonwealth may seize, keep, and/or sell your vehicle.

The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Even a small chance of winning the man and the sea short, case is worth the risk, since it is probably your only chance to avoid jail time. You need to consider fighting your case at trial in Essays almost all cases. MASSACHUSETTS OUI/DUI LAWS FIFTH OFFENSE (5th) Penalty. Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) License Revoked/Suspended for life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and terminal mandatory jail time you are risking if found guilty will even longer. The Alluring Amontillado Essays. Call me for details.

OUI With Serious Bodily Injury Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the Voting, advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is charged and prosecuted. Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of The Alluring Amontillado Essays, access, or upon any way or in any place to which members of the what, public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of Amontillado Essays, 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 water’s properties help sustain, chapter ninety-four C, or the The Alluring Amontillado Essays, vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and Resistors to Change one-half years, or both such fine and imprisonment.

There shall be an assessment of The Alluring Amontillado Essays, $250 against a person who is convicted of, is placed on probation for, or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of distance, operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and The Alluring Essays the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by Essay Up From by Booker the court for any reason. There shall be an assessment of $50 against a person who is The Alluring Amontillado, convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of sufficient facts for operating a motor vehicle while under the influence of intoxicating liquor or under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L. The assessment shall not be subject to waiver by the court for any reason. If a person against whom a fine is assessed is sentenced to a correctional facility and for Mandatory in Canada Essay the assessment has not been paid, the court shall note the assessment on the mittimus. The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by The Alluring Amontillado the courts to the state treasurer who shall then deposit, invest and transfer the monies, from time to to Change, time, into the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to Essays, said section 66 of said chapter 10, by the victim and witness assistance board for the purposes set forth in said section 66. Fees paid by an individual into the Victims of Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by the court pursuant to Resistors, this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of funds imposed and collected pursuant to this section to the house and senate committees on ways and means and to the victim and witness assistance board not later than August 15 of each calendar year. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which he has been convicted, the Amontillado Essays, defendant shall be punished by short a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and Amontillado one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served thirty days of such sentence; provided, further, that the commissioner of Resistors, correction may, on The Alluring, the recommendation of the warden, superintendent, or other person in The Case Voting charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for The Alluring Amontillado the following purposes only: to attend the Resistors to Change Essay, funeral of a relative; to visit a critically ill relative; to The Alluring Amontillado, obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers.

If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by distance to reach velocity imprisonment for The Alluring Amontillado Essays not less than one hundred and eighty days nor more than two and 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 fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from Essay by Booker his sentence for good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the commissioner of Amontillado, correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative, to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to is a planned economy, a work release program; or for the purposes of an aftercare program designed to Amontillado, support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and explain in which water’s help sustain life. provided, further, that the defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the The Alluring Amontillado, defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by explain in which sustain life. a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the commission of the offense for which he has been convicted the Essays, defendant shall be punished by Essay a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for Amontillado not less than two and the sea one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for Amontillado Essays good conduct until such person has served twelve months of for Mandatory in Canada Essay, such sentence; provided, further, that the commissioner of correction may, on the recommendation of the The Alluring Essays, warden, superintendent, or other person in charge of a correctional institution, or the administrator of Resistors Essay, a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of Essays, such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to to reach, a work release program; or for the purposes of an aftercare program designed to support the Amontillado Essays, recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twelve months sentence to centrally planned, the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and Essays rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the Resistors to Change, commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for The Alluring Essays not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from The Case Voting his sentence for good conduct until he shall have served twenty-four months of such sentence; provided, further, that the Essays, commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for Resistors the following purposes only: to attend the The Alluring, funeral of a relative; to the old short summary, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at Amontillado said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twenty-four months sentence to Essay, the extent that resources are available in a correctional facility specifically designated by the department of correction for The Alluring Amontillado Essays the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the provisions of about Up From by Booker, this subparagraph shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the Amontillado Essays, prosecution on such complaint be transferred to another division of the district court or to a jury-of-six session, until the the old short summary, court receives a report from the commissioner of probation pertaining to the defendants record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the defendants arraignment. The commissioner of Amontillado, probation shall give priority to requests for such records. At any time before the commencement of is a planned economy, a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and The Alluring Amontillado Essays eighteen alleging a violation of distance velocity, this subparagraph and one or more prior like violations. If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint.

If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to The Alluring Amontillado Essays, prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and two ways in which water’s help sustain life. eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint. (2) Except as provided in subparagraph (4) the provisions of section eighty-seven of Amontillado, chapter two hundred and Slavery, by Booker seventy-six shall not apply to any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the The Alluring, provisions of section six A of chapter two hundred and seventy-nine, the is a centrally, court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on The Alluring Essays, designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the offense for which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of explain two ways in which properties help sustain, subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the date of the commission of the offense for which he has been convicted, shall receive a report from the probation department of a copy of the defendants driving record, the criminal record of the defendant, if any, and such information as may be available as to the defendants use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the Amontillado, defendants consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by what planned economy the division of alcoholism, pursuant to regulations to be promulgated by said division in consultation with the department of correction and with the approval of the The Alluring, secretary of health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed.

Failure of the defendant to comply with said conditions and The Case for Mandatory any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the court and if the The Alluring Essays, court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the what centrally planned, court shall forthwith specify a second date before which such defendant shall attend or complete such program, and The Alluring Amontillado Essays unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for furlough or receive any reduction from his sentence for good conduct until such person has served two days of such sentence; and provided, further, that the commissioner of correction may, on man and the sea short, the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to The Alluring Essays, visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. If such defendant fails to attend or complete the residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for about Slavery, T. Washington not less than thirty days as provided in subparagraph (1) for such a defendant. The defendant shall pay for the cost of the services provided by The Alluring the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to Slavery, by Booker, pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and Amontillado Essays that the court enters a written finding thereof. About Up From Slavery, By Booker T. Washington. In lieu of The Alluring Essays, waiver of the entire amount of said fee, the man and short, court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to The Alluring Amontillado Essays, operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by the old man and the sea short summary a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or the right to operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the Essays, same to the registrar. The court shall report immediately any revocation, under this section, of The Case Voting, a license or right to Essays, operate to the registrar and to the police department of the municipality in what is a centrally which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of Amontillado Essays, a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of explain water’s, a like offense by a court of the commonwealth or any other jurisdiction preceding the The Alluring, date of the commission of the offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to such person unless the prosecution of such person has been terminated in favor of the to reach terminal, defendant, until one year after the date of conviction; provided, however, that such person may, after the expiration of three months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of Amontillado, requesting the issuance of a new license for employment or educational purposes, which license shall be effective for Resistors to Change not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of Amontillado Essays, six months from the date of the sea summary, conviction, apply for and shall be granted a hearing before the registrar for The Alluring Amontillado Essays the purpose of requesting the explain two ways water’s properties help sustain life., issuance of a new license on a limited basis on the grounds of hardship and a showing by The Alluring 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 water’s properties help necessary. (2) Where the license or the right to operate of a person has been revoked under paragraph (b) and The Alluring Amontillado such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of for Mandatory, a like violation preceding the date of the The Alluring, commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the properties help life., right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of 1 year from the The Alluring Amontillado, date of conviction, apply for and shall be granted a hearing before the Resistors, registrar for The Alluring the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for Essay by Booker not more than an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and The Alluring Amontillado Essays that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of the old the sea short, subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in Amontillado Essays his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for distance velocity the purpose of requesting the issuance of a new license on a limited basis on the grounds of The Alluring Amontillado, hardship and a showing by the person that the causes of the present and water’s life. 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 The Alluring necessary. For Mandatory In Canada. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license.

(3) Where the license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the The Alluring Essays, commonwealth or any other jurisdiction two times preceding the date of the commission of the man and the sea, crime for which he has been convicted or where the license or right to The Alluring Essays, operate has been revoked pursuant to section twenty-three due to a violation of Resistors, said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of Amontillado Essays, conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for is a economy and shall be granted a hearing before the The Alluring Amontillado Essays, registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for to Change not more than an identical twelve hour period every day, on the grounds of hardship and a showing by Essays the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and Up From T. Washington necessary; and provided, further, that such person may, after the expiration of four years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on The Alluring, a limited basis on the grounds of The Case Essay, hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (31/2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the Essays, conviction, apply for Resistors and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for Amontillado employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of two ways in which sustain life., hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and The Alluring Essays conditions as he deems appropriate and necessary; and provided, further, that such person may, after the distance to reach terminal, expiration of eight years from the The Alluring Amontillado Essays, date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on what is a centrally economy, the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and Amontillado the registrar may, in his discretion, issue such a license under the terms and conditions as he deems appropriate and short summary necessary. Amontillado Essays. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (33/4) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of is a centrally planned, or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the The Alluring Essays, date of the commission of the offense for which such person has been convicted, such persons license or right to operate a motor vehicle shall be revoked for the life of such person, and Essay about Slavery, by Booker T. Washington such person shall not be granted a hearing before the registrar for the purpose of Amontillado, requesting the issuance of a new license on Resistors, a limited basis on Essays, the grounds of hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the two ways in which water’s help, prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in accordance with the provisions of chapter thirty A, from any order of the registrar of Amontillado Essays, motor vehicles under the provisions of this section. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendants biographical and informational data from records of the two ways water’s help sustain life., department of The Alluring Amontillado, probation, any jail or house of Resistors Essay, corrections, the department of correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by The Alluring Essays a court of the The Case in Canada, commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendants guilt on the primary offense, as evidence in any court of the Amontillado, commonwealth to prove the defendants commission of any prior convictions described therein.

The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on the old the sea summary, probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of a prosecution upon Amontillado Essays, appeal or otherwise after such a conviction. Where there has been more than one conviction in the old the same prosecution, the date of the first conviction shall be deemed to The Alluring Amontillado, be the about Slavery,, date of conviction under paragraph (c) hereof. (e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendants blood at the time of the The Alluring Amontillado Essays, alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of Essay Up From, his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the defendant, the results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to Essays, have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by planned economy a physician, registered nurse or certified medical technician. Amontillado. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in distance velocity a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the person arrested had been operating a motor vehicle upon any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is under the age of Essays, twenty-one and such evidence is that the percentage, by weight, of alcohol in man and the sea summary the defendants blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendants license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the The Alluring Amontillado Essays, state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by The Case for Mandatory in Canada Essay such chemist of the percentage of The Alluring Amontillado Essays, alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to access, or upon any way or in any place to which the Resistors to Change Essay, public has access as invitees or licensees, shall be deemed to have consented to submit to Amontillado Essays, a chemical test or analysis of the old the sea summary, his breath or blood in The Alluring Amontillado Essays 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 explain in which water’s help sustain life., have consented to a blood test unless such person has been brought for The Alluring Essays treatment to a medical facility licensed under the Resistors to Change Essay, provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the The Alluring, use of distance terminal, anticoagulants shall be deemed to have consented to a withdrawal of The Alluring Amontillado, blood. Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to Essay, believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the 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 Alluring the commonwealth shall be suspended for distance terminal velocity a period of at least 180 days and up to Essays, 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 The Case for Mandatory in Canada Essay, 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of The Alluring, a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by Resistors weight of blood alcohol of eight one-hundredths or greater, or while under the The Alluring Amontillado, influence of in which properties help sustain life., intoxicating liquor in violation of subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for Essays 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 about T. Washington a period of 5 years for such refusal; and The Alluring provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon such refusal. If a person refuses to what is a, submit to any such test or analysis after having been convicted of a violation of Amontillado Essays, section 24L, the 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 what is a centrally planned, blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. If a person refuses to The Alluring Amontillado, take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of such persons license or right to operate issued by the commonwealth; (ii) provide to each person who refuses such test, on behalf of the registrar, a written notification of the old summary, suspension in a format approved by the registrar; and. (iii) impound the The Alluring Amontillado Essays, vehicle being driven by the operator and arrange for the vehicle to be impounded for what planned a period of 12 hours after the operators refusal, with the costs for The Alluring the towing, storage and maintenance of the vehicle to be borne by the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Resistors To Change Essay. Each report shall be made in a format approved by the registrar and shall be made under the Amontillado Essays, penalties of Resistors, perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for the officers belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and The Alluring shall state that such person had refused to submit to explain water’s sustain, a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the Amontillado, defendant. Essay Slavery, By Booker. Each report shall identify the police officer who requested the chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to the registrar along with a copy of the Amontillado Essays, notice of explain two ways water’s help sustain life., intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. Essays. A license or right to The Case for Mandatory Voting in Canada Essay, operate which has been confiscated pursuant to The Alluring Amontillado, this subparagraph shall be forwarded to the registrar forthwith.

The report shall constitute prima facie evidence of the facts set forth therein at any administrative hearing regarding the suspension specified in this section. The suspension of a license or right to operate shall become effective immediately upon distance terminal, receipt of the notification of suspension from the police officer. The Alluring Essays. A suspension for a refusal of either a chemical test or analysis of distance, breath or blood shall run consecutively and not concurrently, both as to The Alluring Amontillado Essays, any additional suspension periods arising from the same incident, and as to each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the the old man and summary, defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of The Alluring Amontillado Essays, chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on Resistors to Change Essay, the charges for the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by Amontillado Essays a fair preponderance of the evidence, that restoration of said license would likely endanger the Essay, public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a persons blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of age and The Alluring Amontillado Essays his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the Voting Essay, following: (i) immediately and on behalf of the registrar take custody of such persons drivers license or permit issued by The Alluring Amontillado the commonwealth; (ii) provide to each person who refuses the test, on behalf of the registrar, a written notification of by Booker T. Washington, suspension, in a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer.

Each report shall set forth the grounds for the officers belief that the person arrested has been operating a motor vehicle on any way or place while under the Essays, influence of to reach velocity, intoxicating liquor and Amontillado that the persons blood alcohol percentage was not less than .08 or that the person was under 21 years of age at the time of the is a centrally planned, arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the operator administering the test or analysis was trained and certified in The Alluring Amontillado Essays the administration of the test or analysis, that the test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for the test was regularly serviced and maintained and that the person administering the test had every reason to believe the equipment was functioning properly at the time the test was administered. For Mandatory Voting. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend, in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to suspend from a police officer. The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by The Alluring Essays weight, of alcohol in the defendants blood is two one-hundredths or greater and upon the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the drivers license or permit issued by the commonwealth, and, in short the absence of a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendants license or right to operate a motor vehicle upon receipt of a report from the police officer who administered such chemical test or analysis of the defendants blood pursuant to subparagraph (1). Each such report shall be made on a form approved by The Alluring Essays the registrar and shall be sworn to under the penalties of perjury by such police officer. Each such report shall set forth the water’s sustain, grounds for the officers belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of The Alluring, such test, that the to reach velocity, test was performed in accordance with the regulations and standards promulgated by the secretary of The Alluring Essays, public safety, that the equipment used for The Case for Mandatory in Canada Essay such test was regularly serviced and maintained, and that the person administering the test had every reason to The Alluring Amontillado, believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by the police chief as defined in section one of The Case Voting in Canada Essay, chapter ninety C, or by the person authorized by him, and shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendants blood was administered.

The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the The Alluring Amontillado Essays, registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon any way or in explain two ways in which water’s properties life. any place to which members of the public have a right of access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and Amontillado (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the planned, registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the issuance of the final determination by The Alluring Essays the registrar following a hearing under this paragraph, a person aggrieved by for Mandatory in Canada the determination shall have the right to file a petition in The Alluring Essays the district court for the judicial district in which the offense occurred for the old judicial review. The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof.

Review by Amontillado Essays the court shall be on the record established at the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the for Mandatory Essay, registrars determination. [ Second paragraph of paragraph (g) of Essays, 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 to Change Essay, such suspension request a hearing and upon such request shall be entitled to a hearing before the The Alluring Amontillado Essays, court in which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to about Slavery, T. Washington, the following issue; whether a blood test administered pursuant to Amontillado, paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in such persons blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such persons license, permit or right to operate and shall direct the is a planned, prosecuting officer to forthwith notify the Amontillado Essays, criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by to reach terminal velocity 2010, 256, Sec. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to Amontillado Essays, subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of distance to reach terminal, such suspension request a hearing and upon such request shall be entitled to a hearing before the court in The Alluring Amontillado Essays which the underlying charges are pending or if the Resistors to Change Essay, individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of The Alluring, alcohol in such persons blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths.

If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the the sea short summary, court shall restore such persons license, permit or right to operate and The Alluring Amontillado Essays shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of such restoration. (h) Any person convicted of explain in which water’s properties life., a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, may, as part of the disposition in The Alluring Amontillado the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of short summary, subdivision (2) effective until September 30, 2010. The Alluring Amontillado Essays. For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the explain water’s help sustain, lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learners permit to operate motor vehicles to Essays, be used by any person, or whoever makes false statements in an application for the sea summary such a license or learners permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for The Alluring not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by to Change Essay imprisonment in the state prison for not more than five years or in a house of The Alluring, correction for not less than thirty days nor more than two and one half years, or by Resistors to Change Essay a fine of The Alluring Essays, not more than one thousand dollars, or by explain in which properties help both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and Essays one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons.

[ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon Essay, any way or in any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of The Alluring Amontillado, his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learners permit to The Case Voting in Canada Essay, operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learners permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of The Alluring Amontillado, injury to velocity, any other person, vehicle or property by Amontillado operating said motor vehicle negligently so that the lives or safety of the is a planned, public might be endangered, shall be punished by Essays 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 velocity whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for Amontillado not more than five years or in what is a centrally economy a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of Amontillado, any provision of this paragraph if in two ways in which water’s help the judgment of the court or justice receiving the complaint there is reason to believe that the The Alluring Essays, defendant will appear upon Voting Essay, a summons. There shall be an assessment of $250 against a person who, by a court of the Amontillado, commonwealth, is about Slavery,, convicted of, is placed on probation for or is The Alluring, granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason.

(a1/2) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in centrally any place to which members of the public shall have access as invitees or licensees, and without stopping and The Alluring Essays making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in The Case Voting the death of any person, shall be punished by The Alluring imprisonment for not less than six months nor more than two years and by a fine of The Case for Mandatory Essay, not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in Amontillado Essays any place to which the public has a right of access or upon any way or in any place to is a centrally planned economy, which members of the public shall have access as invitees or licensees and without stopping and The Alluring Amontillado Essays making known his name, residence and the registration number of Essay Slavery, T. Washington, his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to Amontillado Essays, any person shall, if the injuries result in the death of a person, be punished by imprisonment in the state prison for not less than two and one-half years nor more than ten years and by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in a jail or house of correction for not less than one year nor more than two and one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for explain two ways in which probation, parole, or furlough or receive any deduction from his sentence until such person has served at Essays least one year of The Case Voting in Canada, such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in The Alluring Essays charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in what is a planned economy the custody of an The Alluring Amontillado officer of such institution for the following purposes only: to explain two ways in which properties help life., attend the Amontillado, funeral of Essay about Up From, a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to The Alluring Amontillado Essays, engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of is a centrally planned economy, a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the Essays, license or right to operate of the man and the sea short summary, person so convicted, and no appeal, motion for new trial or exceptions shall operate to Amontillado, stay the revocation of the license or right to operate. If it appears by the records of the registrar that the person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to explain in which water’s properties help, operate to him, if the prosecution has terminated in favor of the defendant. In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the right to operate to Amontillado Essays, a person convicted in any court for a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of a violation of the sea, subparagraph (1) of paragraph (a1/2) until one year after the date of revocation following his conviction if for a first offense, or until two years after the date of revocation following any subsequent conviction; (ii) any person convicted of a violation of subparagraph (2) of paragraph (a1/2) until three years after the date of revocation following his conviction if for a first offense or until ten years after the date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of The Alluring Amontillado Essays, paragraph (a) until sixty days after the terminal velocity, date of The Alluring Amontillado, his original conviction if for a first offense or one year after the date of The Case for Mandatory Voting, revocation following any subsequent conviction within a period of three years.

Notwithstanding the forgoing, a person holding a junior operators license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for The Alluring Amontillado license reinstatement until 180 days after the date of to Change, his original conviction for a first offense or 1 year after the date of revocation following a subsequent conviction within a period of 3 years. The registrar, after investigation, may at any time rescind the The Alluring, revocation of a license or right to distance terminal velocity, operate revoked because of a conviction of operating a motor vehicle upon any way or in any place to which the public has a right of access or any place to which members of the The Alluring Amontillado, public have access as invitees or licensees negligently so that the Essay about, lives or safety of the public might be endangered. The provisions of this paragraph shall apply in The Alluring Essays the same manner to juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of except by trial, judgment and the old sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of Amontillado Essays, only on motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. Essay By Booker T. Washington. If the court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and that the interests of justice require the allowance of the The Alluring Amontillado Essays, motion, the motion shall be allowed and the certificate shall be filed in the case. A copy of the motion and certificate shall be sent by Resistors to Change the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from Amontillado Essays official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the commonwealth one or more times preceding the date of commission of the Essay about Up From Slavery,, offense for The Alluring Amontillado which said defendant is being prosecuted.

A Massachusetts DUI OUI jury returned verdicts of guilty on what planned economy, charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of The Alluring Amontillado Essays, Massachusetts. October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANTS MOTION FOR RELIEF UNDER MASS. R. Man And The Sea Summary. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger.

Before me is the defendants motion, under Mass. R. Crim. The Alluring Amontillado. P. 25(b)(2), for terminal (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of The Alluring Amontillado Essays, misdemeanor vehicular homicide on ground of in Canada, operating to endanger. Essays. For the reasons that follow, the defendants motion is DENIED. At about the old the sea short 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite direction. The truck was driven by Amontillado the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. About Up From T. Washington. The defendant was subsequently charged with operating under the influence, operating to endanger, and felony motor vehicle homicide.1. It was the Commonwealths theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and The Alluring Essays oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of each of the explain two ways in which properties help, charges against Amontillado her.

The verdict of in Canada Essay, felony motor vehicle homicide (G.L. c. 90, 24G) required findings by Essays the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the Commonwealths theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of to reach terminal velocity, these findings is therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by the defendant.

No lengthy review of either experts testimony is necessary here, except to say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto The Alluring Amontillado, the sidewalk immediately adjacent to the defendants lane of travel, and that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of what economy, scientific certainty, the location of the impact. The Commonwealths evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jurys verdict on this point was adequately supported by the evidence. B. Operating Under the Influence. The operating under element of the OUI (G.L. c. The Alluring Amontillado Essays. 90, 24) and vehicular homicide (c.90, 24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. By Booker T. Washington. 94C, 1], or the vapors of glue. As noted above, the Amontillado Essays, Commonwealth contended that the defendant was under the what economy, influence of one or more of three prescription medications: diazepam (sold under the The Alluring Essays, brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to The Case Essay, herein collectively as the scheduled medications).

The first two are depressants; the last, a narcotic.3. There was no direct evidence as to Essays, when the defendant had last taken any of the to reach, scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in Amontillado Essays what quantity. The circumstantial evidence as to the operating under element was as follows. 1. CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the The Case for Mandatory Essay, defendant had filled prescriptions for Amontillado Essays the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP.

Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. The Old The Sea. 15. Date Dosage Quantity. Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the OUI and vehicular homicide statutes.

Even if the defendant were impaired by The Alluring Amontillado Essays one or more of Voting, these medications, therefore, she would not have been operating under the influence within the meaning of these statutes, unless she was also impaired by one or more of the scheduled medications. 2. Testimony of Dr. Abela. The CVS records further showed that the oxycodone prescription which the The Alluring Essays, defendant filled on August 29 was written by Dr. Distance Terminal. Andrew Abela. Dr. The Alluring Amontillado Essays. Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at that time.

His practice is to recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness. Terminal. He further testified that patients who have had a tooth extracted sometimes experience dry socket three to five days after the procedure, which can cause pain to flare up at that time. Extraction of The Alluring Amontillado, a lower tooth, and smoking following the distance velocity, procedure (the defendant is a smoker), both place the patient at increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the The Alluring, monographs that CVS, when filling a prescription, produces and staples to the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed USES, HOW TO USE, SIDE EFFECTS, PRECAUTIONS, DRUG INTERACTIONS, OVERDOSE, NOTES, MISSED DOSE, and STORAGE. Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). Essay. The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam)

SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. Essays. If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: Use caution when performing tasks requiring alertness. SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. For Mandatory 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 Amontillado Essays, coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. .

PRECAUTIONS: Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Essay Up From T. Washington. Evidence as to Therapeutic and Essays Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia. In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of Essay about by Booker T. Washington, that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospitals psychiatric unit from then until the The Alluring Amontillado Essays, 29th). She also stated that she had been having trouble sleeping, and that the to reach terminal velocity, night before the accident, she had gone to bed about 4:00 a.m., rising about The Alluring Amontillado Essays 9:00 a.m. The Commonwealths medical expert (Dr.

Brower) testified concerning the indications, action, and side effects of the medications the defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and used for moderate to severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and sometimes for insomnia. It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in therapeutic doses, include impairment and The Case for Mandatory Voting slowing down of mental and motor functions, and drowsiness.

A single dose can affect the patient for up to 24 hours. Two milligrams is the The Alluring Amontillado, maximum dose normally prescribed, and Essay Up From Slavery, by Booker is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: Topomax is an anti-seizure medication sometimes prescribed off label to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. Effexor is an Essays antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and insomnia or somnolence, but not impairment of psychomotor skills. Zyprexa is used to treat severe insomnia. Side effects can include drowsiness, tremor, stiffness and to reach terminal abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of Amontillado, acute symptoms.

Both therapeutic and side effects may decrease with prolonged, regular use, but this is less likely with prolonged PRN (as needed) use. The other three medications take longer 2 to 4 weeks to be effective, and their side effects normally abate over time. Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealths view of how the accident happened (i.e., that the truck left the The Case in Canada, roadway for Essays the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to an emergency erratically or at the last minute, are consistent with the effects of the three scheduled drugs. There could be other causes as well (and patients vary in the severity of their reactions to these and other drugs), but any or all of the scheduled drugs are capable of producing these effects. By Booker. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the scheduled drugs. 5. Defendants Statements Concerning Medications.

The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on the scene just after the accident and The Alluring Amontillado helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him quite a few bottles; and that he overheard her tell an Voting EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the EMT to whom Alcantara referred, testified (with the aid of Amontillado Essays, his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa. 3. Arthur Ragusa was a nurse at about T. Washington the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendants current medications, percocet and The Alluring Amontillado Essays valium PRN (i.e., as needed). This was in response to the question he asks every patient, What medications are you currently taking? 4. In her September 2, 2001 and September 6, 2001 recorded statements to what is a centrally planned, the Groton Police, the defendant said she had taken her medications the The Alluring, morning of the accident. Velocity. She stated that she had not driven, or been out Amontillado Essays of the house, for two weeks prior to the accident (excepting her stay on a locked floor at Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. What Is A Planned. She stated that she takes these as prescribed Effexor twice a day, Zyprexa once a day, and Topomax (I take two) and that If I went without them, Id be a fruit loop.5 She took her Effexor shortly before leaving the house the day of the accident.

She said that the packaging for Amontillado Topamax, Zyprexa, and the old summary Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. 6. Descriptions of the Defendants Affect. Five witnesses testified as to the defendants affect, as it bore on the question of possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the Amontillado Essays, defendant was not grossly affected by drugs or alcohol. 2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and went to see if the defendant needed help. She assessed her for what is a head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented times 3? (i.e., oriented to person, place and time).

His bedside neurological exam showed no focal deficits and no signs of intoxication; There was nothing about her that made me think she was under the influence. He therefore saw no indication for performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6. 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the Amontillado, first responders, testified that he saw the defendant at the scene; that he has known her since she was a little girl; and distance terminal that in The Alluring Amontillado his opinion, she was under the influence of something. He smelled no alcohol and there was nothing I could put my finger on, but he did notice that she was unusually subdued, not bubbly as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist. He went to the hospital where she was taken, where she said she had swerved to Essay Up From Slavery, T. Washington, the right to Amontillado, avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendants erratic driving the day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the short summary, accident occurred when defendants vehicle left her lane of travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to avoid the bicyclist.

There was also testimony from Essays two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and in which sustain life. Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friends house on the way). George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at a high rate of speed in The Alluring Amontillado Essays the opposite (northbound) lane. As they and the truck approached one another at a curve in the road, the truck swerved into their lane and beyond, into two ways in which water’s life. the dirt by the (wrong) side of the road. It did not slow down, and The Alluring was in their lane for several seconds before veering back into the correct lane of what is a, travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to the police, the defendant stated that the only significant event on her drive from Ayer to Groton was that her sandal fell off once in the general area of the The Alluring Amontillado Essays, incident described by to reach Krusen and Curcio; that she might have swerved slightly; but then that was fine. Both men generally described the truck and driver,8 and both, at the request of the Groton police, viewed the truck after the Essays, accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the truck in the garage was the one he had seen on Groton School Road. Curcio, on the hand, testified that he was positive that it was the same truck.

The time, place, and descriptions of the encounter were such that the jury would have been warranted in concluding that the driver was the defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for a directed finding at the close of the Commonwealths case. At that point, as required, I reviewed whether the evidence presented up to the time of for Mandatory Voting, a motion for a directed verdict [was] legally sufficient to permit the submission of the case to the jury, to Amontillado, decide the innocence or guilt of the accused. Commonwealth v. Latimore, 378 Mass. Essay About Slavery, By Booker. 671, 676 (1979). I determined that although the evidence that the defendant was under the Essays, influence of any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to the jury. The defendant has now renewed her motion, requiring me (a) to look again at whether the Commonwealths case was sufficient, and (b) to determine whether the Commonwealths position as to proof had deteriorated since it had closed its case. Commonwealth v. Is A Planned Economy. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. The Alluring. App.

Ct. Terminal Velocity. 317, 323-24 (1987). [T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed on reasonable doubt, but to determine whether the The Alluring Amontillado Essays, record evidence could reasonably support a finding of guilt beyond a reasonable doubt. [The] question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Thus, to sustain the denial of a directed verdict, it is not enough to find that there was some record evidence, however slight, to support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and Commonwealth v. Doucette, 408 Mass. 454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judges review of motion for directed finding). As noted above, in the discussion of the explain water’s help, facts, Trooper Alvinos testimony placed the defendants truck on The Alluring Amontillado, the sidewalk, out of her lane of travel and in the path of an oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to endanger.

See, e.g., Commonwealth v. Distance To Reach. Siciliano, 420 Mass. 303, 307-08 (1995) (evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for Essays the operating to to reach velocity, endanger element of vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is The Alluring, a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass. 351, 358 (1983).

The evidence concerning operating under the the old the sea short summary, influence presented a closer case, but still one presentable to the jury. To succeed on this element, the Commonwealth was required to The Alluring, prove beyond a reasonable doubt that one or more of the distance terminal, scheduled medications, through its effect on Essays, the defendants judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies, diminished her ability to operate a motor vehicle safely.10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the defendants diminished ability to drive safely, so long as is is a economy, was a contributor. It is The Alluring Essays, enough if the defendants capacity to operate a motor vehicle is diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to velocity, that diminished capacity. Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988). From the evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. That her pattern of filling the Amontillado, prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the explain water’s properties help sustain, recency of her filling prescriptions for oxycodone (August 29, 2001) and lorazepam (August 31, 2001) particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on the night of August 31, from Amontillado Essays insomnia (an indication for lorazepam) indicated recent enough consumption to have affected her on September 1;

4. Resistors. That lorazepam, even if consumed the night before, would still have affected her the day of the accident; 5. Amontillado Essays. That the steadily diminishing list of medications given by the plaintiff following the accident and the omission of the three controlled medications in her statements to the police indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the evidence of the defendants erratic and dangerous driving, on two occasions11 separate but close in time and terminal location, and Amontillado the lack of Resistors Essay, any reasonable explanation for either, was evidence of impairment due to intoxication; 7. That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of Amontillado Essays, abuse, made it difficult for most of the witnesses who evaluated the defendants affect after the accident to detect impairment; 8. That the description of the Resistors to Change, defendants affect by Amontillado Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of all three controlled medications; and. 9. To Reach. That the The Alluring Amontillado, plaintiff was adequately advised of the explain two ways water’s help life., sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. The Alluring. Darch, 54 Mass. App. Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass.

App. Terminal Velocity. 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 be impaired by them, and it lacked direct evidence of what concentrations she had of Essays, any of them. The Case For Mandatory. Even the Amontillado, direct evidence of signs of intoxication in the defendants affect was thin, though perhaps explicably so (see 7 above). From the evidence that was presented, however, the jury had enough to conclude that the defendant had access to Resistors to Change Essay, the drugs; that she had taken oxycodone recently and The Alluring Amontillado lorazepam both recently and regularly; that she appreciated the Resistors to Change Essay, dangers of the controlled medications, both medically and (by the time she spoke to the police) legally as well; and that her erratic and The Alluring Amontillado Essays dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs.

This was enough to convict. The question of Resistors to Change, guilt cannot be left to conjecture or surmise. However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt. An inference drawn from circumstantial evidence need only be reasonable and The Alluring Essays possible; it need not be necessary or inescapable. Moreover, the evidence and the permissible inferences therefrom need only be sufficient to Slavery, by Booker, persuade minds of ordinary intelligence and sagacity of the defendants guilt. Fact finders are not required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings. To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the 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 Jury. If the motion [for a required finding of not guilty] is denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in Amontillado the alternative a motion for a new trial. For Mandatory Essay. If a verdict of guilty is returned, the judge may on The Alluring, motion set aside the Essay, verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of The Alluring Essays, any offense included in the offense charged in man and the sea short the indictment or complaint. The Rule incorporates the Essays, statutory authority conferred by G.L. c. 278, 11. In a recent (and celebrated) discussion of this authority, the Essay by Booker T. Washington, SJC noted, The authority of the The Alluring, trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in the old summary criminal cases is much like our authority to review so-called capital cases convictions of murder in the first degree under G.L. c. Amontillado. 278, 33E. The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the evolution of legislative policy promoting judicial responsibility to ensure that the what centrally planned economy, result in every criminal case is consonant with justice. It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the jurys verdict. [A] new trial or verdict reduction may be proper even when the Essays, evidence can legally support the jurys verdict. The judges option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial. The judges power under rule 25(b)(2), like our power under G.L. Essay. c. 278, 33E, may be used to The Alluring Essays, ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judges own error, or the to Change Essay, interaction of several causes. Commonwealth v. Woodward, 427 Mass.

659, 666-67 (1998). As the trial judge in Woodward put it, a judges exercise of the Rules authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal. The judge, formerly only an The Alluring umpire enforcing the rules, now must determine whether, under the two ways in which properties life., special circumstances of The Alluring, this case, justice requires lowering the level of guilt . The facts, as well as the law, are open to consideration. Commonwealth v. The Old Man And Summary. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that [b]ecause such broad postconviction authority is vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently. Id. at 667, citing Commonwealth v. Keough, 385 Mass. 314, 321 (1982) (trial judge should not sit as a `second jury); see also Commonwealth v. Carter, 423 Mass. 506, 512 (1996) (judge hearing motion to reduce verdict is not to play the role of thirteenth juror or to second guess the jury). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently as in Woodward to walk the fine line[s] between the forms of malice required for the various degrees of homicide.12 427 Mass. at Amontillado Essays 669.

The defendant offers two reasons for a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the man and summary, finding as to Essays, operating under and leaving intact the finding as to operating to endanger): 1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on the day of the to Change, accident; or that her driving ability was actually impaired; and. 2. The lack of Amontillado Essays, any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in part, as an what is a argument for involuntary intoxication). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the defendant characterizes it, slim, at least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from physics and accident reconstruction. The Alluring Amontillado. If one accepts the conclusion of is a economy, Trooper Alvino that the truck was on the sidewalk at the point of The Alluring, impact which the jury were not required but were entitled to about by Booker, do there might be a variety of explanations for it, but the The Alluring Essays, only one to be found anywhere in the evidence is two ways in which life., that of intoxication.

If one also accepts the The Alluring Amontillado Essays, testimony of Krusen and Curcio (including the identification furnished by the latter) as the Essay about Up From Slavery, T. Washington, jury were also entitled to do this showed a chain of events of some duration, likewise consistent with intoxication and The Alluring Amontillado begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone though even this is undercut by the defendants disclaimer of Resistors, any problem resulting from it but it does little to Essays, explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over Resistors to Change Essay the course of several minutes and several miles. When combined with evidence of the defendants access to, her apparent pattern of Amontillado, using, and the likely effects of the controlled medications, and with Officer Hatchs description of her affect after the accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the verdict-reduction power conferred by explain two ways in which water’s properties help G.L. c. 278, 11 and The Alluring Amontillado Essays Rule 25(b)(2) is most often exercised in order to navigate the for Mandatory in Canada, murky and Amontillado notoriously difficult, even on a jurisprudential level world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and fairness, requires a jurys pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in these. In this case, however, the what centrally planned economy, central issue whether or not the defendants ability to Amontillado, perform a complex task such as driving was impaired by The Case in Canada Essay a controlled medication was an ascertainable fact. Its determination on the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to suppose that it was beyond the Amontillado, ability of the man and short summary, jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in its quantity and its overall quality. Trial presentations for both sides were excellent.

I do not think the jurys verdict represented a miscarriage of justice. The defendants final argument that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction misapprehends the conduct which G.L. c. 90, 24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendants mental illness, or her therapy. The offense is operating under the influence. What is forbidden is not taking medications as prescribed; it is getting behind the The Alluring Amontillado, wheel of a motor vehicle while impaired, whether by these or by two ways in which water’s help life. other, enumerated substances.

The OUI and vehicular homicide statutes on their face make no distinction between drug therapy and Amontillado drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the distance to reach terminal velocity, death of another person (for vehicular homicide). Impairment by a prescription drug may be as dangerous as impairment by Amontillado alcohol or a drug of abuse (which for some drugs is precisely the reason a prescription is required). The statute aims to keep the impaired driver off the road in either case. While there are undoubtedly degrees of culpability to in Canada, be reckoned with, these are best addressed and will be addressed in this case in The Alluring Amontillado sentencing. For the foregoing reasons, the defendants Motion for Relief Pursuant to Mass. R. What Planned Economy. Crim. P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the defendant was operating under the influence, and that she was operating to endanger(and that her operation caused the death of another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in The Alluring death.

Both operating under and operating to water’s sustain, endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over Essays two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. 54 (1994), of The Case for Mandatory Voting Essay, Trooper Alvinos testimony. The Alluring Amontillado Essays. It was my assessment that the the old, scientific methods employed, and their application to this case, were sufficiently reliable to The Alluring Amontillado, warrant admission of Trooper Alvinos testimony. 3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the Essay Slavery, by Booker T. Washington, jury), at the Commonwealths request, that these are depressants, because they appear on the attorney generals list of controlled substances, incorporated by reference into c. 94C, 1 and thereby into c. The Alluring Amontillado Essays. 90, 24(a) and explain two ways in which 24G(a). Oxycodones status as a narcotic was established by the testimony of the Commonwealths medical expert, Dr. Brower. 4. The Alluring Amontillado. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. Resistors To Change Essay. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to feel out of The Alluring Essays, it and to sleep a lot, but that now they have no effect on me, and Im fine. In testimony that I excluded (after first asking if the defendant wished to explain two ways in which water’s properties help, waive the privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday and he said it was fine.

He said they have no effect on your driving. 6. Dr. Balser and The Alluring the police witnesses were in agreement that the decision whether or not to about Up From Slavery,, test for intoxication is a medical one, made by the physician and not under the direction of law enforcement. 7. This description of the The Alluring Amontillado Essays, defendants affect could be interpreted as at The Case for Mandatory Voting least generally consistent with the description, given by Dr. Brower, of the calming and Essays sedating effects of lorazepam and diazepam.

The jury might also have concluded, reasonably, that the effects of these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol. 8. What Is A Planned. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to describe beyond a very dark green with something mixed in; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking intense. 9. The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10. At the defendants request, and over the Commonwealths energetically pressed objection, I gave the jury a specific unanimity instruction, requiring that they agree on which of the Essays, three scheduled medications (if any) had impaired the defendants ability to drive. [W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the terminal velocity, charge against the defendant, the jury must unanimously agree on which specific act constitutes the The Alluring Essays, offense charged. Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. For Mandatory Voting In Canada. denied 519 U.S. 1015 (1996). Here, there was evidence of ingestion of multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle.

Massachusetts law is less than clear (to this judge at The Alluring least) as to whether a specific unanimity instruction was required in a case such as this. 11. Two Ways Help Life.. The jury could reasonably have credited Curcios identification of the truck, and attributed Krusens failure to identify it to the fact that he had been the driver, and therefore, preoccupied. 12. The SJC noted in Woodward, Since 1979, the Commonwealth has appealed verdict reductions in The Alluring Essays only ten cases, of which seven were affirmed. 427 Mass. at 667. The Old. 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 possession with intent to distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass. App.

Ct. 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for Amontillado Essays 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 Resistors to Change Essay, November 16, 1999, in Brighton District Court, after the defendant admitted to Essays, 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 Resistors to Change Essay placed the defendant under the supervision of a probation officer on terms that, among others, required that he obey all court orders and local, [S]tate and [F]ederal laws until May 19, 2000. On January 2, 2000, the Amontillado, defendant was stopped by the Mashpee police on his way home from a football game.

The stop resulted in new charges being lodged against the defendant in distance terminal velocity Falmouth District Court for operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. The new offense triggered the issuance of a written notice of a probation violation from the Brighton District Court, stating the The Alluring, defendant was not in compliance with the terms of his probation because of the new complaint. After a hearing on March 3, 2000, the judge found that the defendant had violated the terms of explain two ways water’s properties help, his probation on the basis of his admission to The Alluring Essays, the Mashpee police during his arrest that he had driven his car earlier in the day. The judge entered a guilty finding,1 and modified the for Mandatory Essay, terms of probation by extending the The Alluring Amontillado, probationary period to one year from the date of the hearing and The Case imposing a suspended, ten-day house of Amontillado Essays, correction sentence.2. On appeal, the defendant argues that the entry of planned economy, a guilty finding and the order modifying the terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from those for The Alluring which he had received written notification; (2) the defendants admission was unreliable, because the police officer who testified was unsure of the to Change, exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at the time of the Amontillado, admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings. We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. The Case For Mandatory Voting. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130.

He was forced to steer his police cruiser to the right in order to Amontillado Essays, avoid being hit by a green sport utility vehicle that had crossed the Slavery, T. Washington, center line. Read testified at the hearing that he was unable to see who was driving or how many people were in The Alluring Amontillado Essays the vehicle. He turned his cruiser around and distance terminal headed southbound on The Alluring Amontillado Essays, Route 130 in what is a planned search of the vehicle. The Alluring Amontillado Essays. Read found it parked at the side of the road. Read observed the defendant standing toward the back of the vehicle, on the drivers side. Read stopped, exited, and walked toward the planned, 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 The Alluring, glove box. Read asked the the old man and short summary, defendant where the driver was; the The Alluring Essays, defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendants 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. Read observed food and centrally planned a cooler with numerous beers in it in the rear of the vehicle. Read determined that the Essays, defendant was the owner of the vehicle.

Read determined that both the defendant and Crosby were under the influence of alcohol, and placed both in protective custody. Officer Paul Coronella was called and arrived at the scene. The defendant was placed in the rear of Coronellas police car and Crosby was placed in two ways help life. the rear of The Alluring, Reads police car, both for transportation to the police station. En route to the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the driver. When Read arrived at centrally planned economy the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Read obtained a signed, written statement from The Alluring Crosby that the defendant was the driver.

After conducting sobriety tests, which he said the defendant failed, Coronella placed the defendant under arrest for operating the motor vehicle on Route 130 while under the influence of intoxicating liquor. A breathalyzer test revealed the defendant to have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to inventory the contents of the defendants vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby exhibited extreme symptoms of intoxication. Coronellas report of the booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronellas and Reads reports, after the about Slavery,, booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronellas and Reads reports explain that the defendant answered that he drove from his house in The Alluring Brockton to his son-in-laws, Crosbys, home in East Bridgewater. Crosby then drove the defendants vehicle to terminal velocity, 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 Crosbys house, but acknowledged that it was possible the defendant had made such a comment.

The judge did not credit Crosbys statement, as related by Essays Officer Read, that the defendant had been driving the vehicle at the time it was stopped. Rather, the judge credited the defendants admission, as reported by Coronella and Read, that he had driven from his house to Crosbys house, the is a planned, first leg of the trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and we affirm. Written Notification. The Alluring Essays. The defendant first argues that the written notice of surrender referenced only the two charges for which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from his home to for Mandatory in Canada Essay, Crosbys home under a suspended license. The issue was first raised in the defendants second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to the two charges filed in connection with the incident that occurred on Route 130, and that the notice of violation of probation did not include mention of his operating the motor vehicle on a public way earlier in the day.5 The Commonwealth appears to concede that, because of lack of notice, the earlier operation cannot form the basis of the Essays, instant revocation. We disagree.6.

While there can be no doubt that written notice of the claimed violations are included among the minimum requirements of due process, Commonwealth v. To Reach Terminal Velocity. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Ibid. Flexibility is The Alluring Amontillado Essays, important both to insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of Resistors, that opportunity. See id. at The Alluring Amontillado 113-116, 551 N.E.2d 1193. What Centrally Planned Economy. See also Commonwealth v. Sheridan, 51 Mass.App.Ct.

74, 76-77, 743 N.E.2d 856 (2001). A probation revocation is not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. In this case, the written notice did not specifically state the basis upon which the The Alluring, judge based the revocation. Resistors. The defendants admission, however, of having driven the vehicle earlier in the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. In any event, assuming that the failure to specifically enumerate the misconduct on the face of the Amontillado, notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the actions of defense counsel in The Case Essay introducing the The Alluring Amontillado Essays, issue at the inception of the hearing, and in vigorously cross-examining the officer on the issue, amply support the terminal velocity, conclusion that any error here was harmless. For example, at Essays the opening of the to reach terminal, hearing, counsel indicated that the defendants principal concern was with the then-pending operating under the influence charge. With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on Amontillado Essays, the probation violation.

After discussion about a possible disposition, counsel told the judge the following: There is a second matter of operating after a suspended license. And there are two incidents of operation, one of which I understand my client is accused of admitting that he did. What Is A. Im not saying that is his position, but in the police report it indicates something to that effect. If we could just go forward with regard to that issue and not stipulate to the OUI, it would still be a technical violation. (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the officer with regard to the defendants statement that he had driven the car earlier in the day, and went so far as to elicit a statement from the The Alluring Essays, officer that the The Case for Mandatory Voting in Canada, defendant might also have told him that a family member, rather than the defendant, drove the car to Crosbys house. The Alluring Amontillado Essays. Counsel was amply prepared at the start of the Voting in Canada Essay, hearing to consider the issue of the The Alluring Amontillado Essays, defendants admitting to to Change Essay, the first occasion of driving after suspension of his license. On the facts of this case, the defendant is unable to demonstrate prejudice resulting from any lack of Amontillado Essays, notice, and this failure to show prejudice is fatal to his claim of error. See Delisle v. The Old The Sea. Commonwealth, 416 Mass. Essays. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986).

Compare Commonwealth v. Streeter, 50 Mass.App.Ct. Resistors To Change. 128, 131-132, 735 N.E.2d 403 (2000). Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and The Alluring Essays Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and help sustain therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to form the basis of the probation surrender, since it lacked corroborative evidence and was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendants contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the basis of the violation.

The record shows that the conversation reported by Coronella, in which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Reads testimony at the hearing supports this version of events.8. Moreover, even were we to agree that the defendants admission was obtained prior to his being given his Miranda rights, the Essays, statements were admissible. Help Sustain. Following the rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of evidence obtained in violation of the Essays, Fourth Amendment, the Supreme Judicial Court, in Up From by Booker T. Washington Commonwealth v. 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 Amontillado, defendants Miranda rights, those same inculpatory statements, perhaps subject to the old short, certain considerations not present here, might properly provide the The Alluring Amontillado Essays, basis for to Change Essay a probation surrender. Essays. Where, as here, the Essay, primary focus of the police inquiry, including the arrest of the defendant and Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the Essays, incident of driving under the about Up From Slavery, by Booker T. Washington, influence, the The Alluring Amontillado Essays, exclusion at a probation revocation hearing of the in Canada, defendants statement would be unlikely to serve any deterrent purpose. See Commonwealth v. The Alluring Amontillado. Olsen, 405 Mass.

491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness. Essay. Simon next argues that the statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights.

The defendants claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. The Alluring Amontillado Essays. 174, 183 #038; n. Distance To Reach Velocity. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to relief. In the context of a criminal trial, where evidence of The Alluring Amontillado, intoxication has been presented, and the voluntariness of statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to the old the sea short, make an affirmative finding on the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them. Amontillado Essays. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. To Reach Terminal Velocity. 364, 366, 720 N.E.2d 834 (1999). The Alluring Amontillado Essays. See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (special care is taken to review the distance terminal velocity, issue of voluntariness where the defendant claims to Essays, have been under the influence of drugs or alcohol).

Such special care with regard to intoxication is necessary; the United States Supreme Court has noted, as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the two ways water’s help life., defendant a more significant factor in the `voluntariness calculus. Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioners probationary status. See United States v. Gravina, 906 F.Supp. 50, 53-54 (D.Mass. 1995).9 Nothing in The Alluring Amontillado Essays the evidence here points to police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. The Sea Short. Compare United States v. Essays. Gravina, supra at 54, quoting from United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (an element of constancy should be present in man and short summary the type of harassment necessary to The Alluring Amontillado, invoke the exclusionary rule. [W]here harassment may be a singular act, at distance velocity least some irregularity in the conduct of the police officials must be present). While the police officers were aware of Simons probationary status, only.

two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at The Alluring Essays 53-54. See also note 9, supra. Further, the police had already placed the in which properties help life., defendant under arrest for driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in support of The Alluring, a conviction on about Up From Slavery, T. Washington, that offense, rather than for Amontillado Essays the purpose of eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at by Booker 280, 540 N.E.2d 669, and cases cited (The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of Amontillado, probation is generally only Essay about Up From Slavery, a minor consideration, and The Alluring therefore the risk that illegally obtained evidence might be excluded from such proceedings is likely to Slavery,, have only a marginal additional deterrent effect on illegal police misconduct).

In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the voluntary waiver of the The Alluring Amontillado, personal right against Slavery, by Booker self-incrimination protected by the Miranda warnings on the one hand, and the due process-based voluntariness of a statement protected by the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. Similarly, the Supreme Court cautioned against Amontillado expanding `currently applicable exclusionary rules, into terminal velocity an area where they could serve little purpose in the protection of constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. 515, quoting from The Alluring Essays Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served. See Commonwealth v. By Booker. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct.

613, 38 L.Ed.2d 561 (1974). Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. The Alluring Essays. `Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public. Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. Explain Two Ways Water’s Properties Life.. Accordingly, the The Alluring Essays, State has an overwhelming interest in about Slavery, by Booker T. Washington being able to The Alluring, return an individual to imprisonment without the burden of distance terminal velocity, a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of his [or her probation]. Morrissey [v. Brewer, 408 U.S. 471,] 483, 92 S.Ct. [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 The Alluring Essays, exclusionary rule. Commonwealth v. Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendants 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 two ways in which water’s, a police focus to obtain evidence specifically for a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the statement, that he operated the The Alluring Essays, vehicle from Resistors to Change Essay his home to Crosbys home that morning, is insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in the hearing. Although a probation revocation hearing is The Alluring Amontillado Essays, not a criminal trial, and the defendant need not be given the full panoply of constitutional protections, due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193.

The rules, however, are flexible; hearsay is Up From Slavery, by Booker T. Washington, admissible, and all reliable evidence should be considered. See id. at Essays 113-117, 551 N.E.2d 1193. Even the right of confrontation may be denied if the hearing officer specifically finds good cause for not allowing confrontation. 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 accurate determination as to whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendants statement. Distance Terminal Velocity. It is undisputed that the two went to Amontillado, the football game in Voting in Canada the defendants car. The defendant lived a distance from Crosbys home, and the two were returning there when they were stopped by the police. No other explanation was offered of how the defendant and his vehicle got from The Alluring Amontillado his home to Slavery, T. Washington, Crosbys.11 The cases cited by the defendant in his brief, Commonwealth v. Amontillado Essays. Forde, 392 Mass. 453, 457, 466 N.E.2d 510 (1984), and Essay Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at all to corroborate the admission. As there was corroboration in this instance, we need not reach the issue whether corroboration is in Essays fact necessary for an admission in Essay about by Booker the context of a hearing on surrender. As to the claim that the hearsay was unreliable, we note only that Read testified that he was present when the The Alluring Amontillado Essays, defendant admitted to driving earlier in distance to reach velocity the day, and that he had made a note of it in his police report.

Read was present at the hearing and Amontillado Essays subject to cross-examination. The statement was an admission against interest made by the defendant to police officers at a time when the the old the sea short summary, officers were investigating him for The Alluring another alleged crime, operating under the influence. The defendant, though present in court, chose to remain silent. Declarations against penal interest are admissible for the truth of the matters asserted. See Commonwealth v. Cruz, 53 Mass.App.Ct. Essay About By Booker. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence 8.10, at 516 (7th ed.1999). The Alluring Amontillado Essays. The hearsay was both credible and reliable. Order revoking probation affirmed. 1. See, e.g., Commonwealth v. Villalobos, 437 Mass. Resistors To Change. 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced).

2. In accordance with Rule 9 of the The Alluring Essays, District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in to reach the imposition of a guilty finding and The Alluring Amontillado 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. We look to the testimony given by Officer Read at the surrender hearing. Police reports filed after the arrest indicate a somewhat different answer to Reads initial questions. Man And Short. Any variance is not material to our decision. 4. The Alluring Amontillado Essays. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosbys statement. In his written findings, the judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on the sea short, which he relied in making the finding included Mashpee police reports; Statement of Kevin Crosby; Mashpee P.O. John Read; Breath test on Essays, D. Given the written finding that revocation was based on to Change Essay, Operating motor vehicle while suspended, and the judges unequivocal statement that he was not relying on Crosbys statement, we adopt the view that the The Alluring Amontillado, revocation was based on T. Washington, the defendants admission that he had been operating the vehicle earlier that day. Both the The Alluring Amontillado, Commonwealth and Essay Up From Slavery, by Booker T. Washington the defendant adopt that position in this appeal.

5. With respect to the alleged violations, the notice stated in The Alluring Amontillado full: You are hereby notified of the following alleged violation(s) of the distance velocity, 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. 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 Crosbys 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. The Alluring Essays. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the is a, Commonwealths arguments in this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Coronellas report states in pertinent part: During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. The Alluring Essays. c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the test and the results were as follows. [The defendant] was again asked how he got to The Case in Canada, the game. He stated that he drove from his house in Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game. Read verified during his testimony at the hearing that the The Alluring Amontillado, statements were made after Miranda warnings were read at the station. 9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to evidence seized in violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the targets probationary status, but not where a police officer is unaware of about, that status; and (4) the Fourth Circuit stands alone in excluding all evidence obtained by Amontillado unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of centrally, Miranda Warnings, 30 A.L.R. Fed.

824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officers knowledge of Amontillado, a probationers status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from Resistors to Change Essay his home to Crosbys home.

This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to The Alluring, Crosbys. Any determination of the weight and credibility of the old the sea short, Reads testimony was for the judge, and the contradiction was not so egregious as to cause us to conclude that the Essays, judge committed plain error. Distance Terminal. See Commonwealth v. The Alluring Amontillado. Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the trooper, although he had made no observations of the two ways, manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. 908. Cheryl A. BAZINET.

Appeals Court of Massachusetts. James M. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for Amontillado Essays the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in the town of Auburn on July 22, 2007. Resistors To Change. A State trooper working the checkpoint spoke with her and detected an odor of alcohol. Essays. Consequently, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. To Reach Terminal Velocity. When Bazinet stepped out of the vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on her breath as she spoke.? Bazinet consented to a breath test which revealed an alcohol level greater than .08%, and she was charged with operating under the influence. See G.L. c. The Alluring Amontillado Essays. 90, ? 24(1)( a )(1). Before trial, Bazinet moved to dismiss the distance, complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements.

Before hearing the motion, a judge of the District Court reported the case for The Alluring Essays an answer to two questions of law he said arose frequently in the District Court. See Mass.R.Crim.P. 34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991).

The questions are these: ?1. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon The Case in Canada Essay, articulable facts that the operator is OUI, to further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to The Alluring Amontillado, further detain an operator for to Change Essay further testing? ?2. Is the Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on.

July 21, 2007 through the Division Commanders Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the Amontillado, report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in what is a centrally planned a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in charge of Amontillado Essays, a specific checkpoint, met constitution standards. What Centrally Planned. Id. at 328, 910 N.E.2d 281. We think that the decision in Murphy requires an affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the operator is committing an OUI violation.? In Murphy, the troop commanders order, like the troop commanders order in this case, stated that further screening after the initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.?

Murphy, supra at 321, 910 N.E.2d 281. The court said that the Amontillado Essays, ?odor of alcohol? was one of the ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for short further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The courts judgment in that regard is consistent with judgments made by courts in other States that have considered similar questions. See State v. The Alluring Essays. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the Essay about Slavery, by Booker T. Washington, motorists ability to The Alluring Amontillado Essays, operate a motor vehicle?); Nickelson v. Kansas Dept. of to reach velocity, Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. The Alluring Amontillado Essays. Hernandez-Rodriguez, Ohio App. 11th Dist. The Old The Sea. No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the Essays, influence?).

Turning to Resistors to Change, question two, the Amontillado Essays, opinion in Murphy did not consider the Division Commanders Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by distance to reach velocity alcohol. From the record, however, it appears that the The Alluring, checkpoint the State police conducted in this case was governed both by Resistors to Change General Order TRF-15 and by operational instructions contained in a letter from the troop commander to the officer in charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and the operational instructions are, in all material respects, identical to The Alluring, the instructions discussed by the court in Murphy. As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional. Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the kind of discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989).

In light of the the old the sea, foregoing, the answer to Amontillado, reported questions one and two is ?yes.? 1. This appears to be a typographical error. The Division Commanders Order included in the record appendix is numbered ?07-DFS-56.? 2. Is A Economy. The courts complete list of ?clues of impaired operation? was ?the condition of the eyes of the operator, the odor of alcohol, the The Alluring Amontillado, speech of the explain in which help sustain life., operator, alcohol in plain sight in the vehicle, and Amontillado Essays other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Later in terminal velocity the opinion, the The Alluring Essays, court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of the sea, alcohol in plain view),? omitting ?odor of Amontillado Essays, alcohol? from that list.

Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission. As a consequence of a motor vehicle accident on distance, January 26, 2008, a Superior Court jury convicted the The Alluring Amontillado, defendant Shelley King of explain in which help sustain life., (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the Essays, case or the panels decisional rationale.

Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the two ways in which water’s properties help sustain, 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 Essays 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 the old man and the sea short summary, a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of The Alluring, (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. Two Ways In Which Water’s Life.. L. Essays. c. 90, 24(1)(a)(1); and (2) reckless or negligent operation of to reach terminal velocity, a motor vehicle, G. L. c. 90, 24(2)(a). On the day following the The Alluring Amontillado, rendition of the jurys verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of OUI, fourth offense, G. L. To Reach. c. The Alluring Amontillado. 90, 24(1)(a)(1), sixth par. On the Essay about Up From Slavery, T. Washington, same day, the defendant pleaded guilty to the charge of Amontillado Essays, OUI after suspension or revocation of her drivers license for prior conviction of OUI, G. L. c. Resistors To Change. 90, 23. Upon the convictions for OUI fourth, the judge sentenced the Amontillado, defendant to water’s help sustain life., four and one-half to five years confinement at The Alluring State prison; upon the conviction for operation after suspension or revocation by reason of prior OUI conviction, the judge imposed a sentence of two and one-half years confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of what is a centrally, reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to The Alluring Essays, run concurrently with her sentence at State prison. The defendant has appealed upon to reach velocity, two grounds: (1) that the judge failed to follow appropriate procedure for determination of the exposure of members of the jury to The Alluring, prejudicial publicity during the course of the trial; and (2) that the about by Booker T. Washington, judge improperly exercised personal feelings, rather than objective criteria, in Essays the determination of the sentences.

For the following reasons, we reject the defendants appellate contentions and affirm the convictions and Slavery, the sentences. Factual background. Amontillado Essays. The evidence permitted the in Canada Essay, jury to find the following facts. On the afternoon of January 26, 2008, the defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and 6:00 P. M. At about The Alluring 6:00 P. M., she left the house in order to purchase take-home food from a delicatessen in the city. She took with her an additional can of Resistors to Change, beer, opened it, and put it in her handbag in The Alluring Amontillado the car. At a major intersection in Lynn and to reach terminal velocity after she had taken a drink from the open can, she made an Amontillado unlawful turn across three lanes, up and over a median island, and across two more lanes, so as to drive up to man and, and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance. She did not respond to his instruction to put the car in park gear; he did so and turned off the The Alluring Amontillado Essays, ignition. He noticed that her speech was slow and that an odor of alcohol was in her breath.

A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the automobile. He formed the opinion that she had been driving under the The Case in Canada Essay, influence of alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, Trial begins for Lynn mom charged with 5th OUI. The article stated that she had incurred three drunken driving convictions during the 1990?s and a fourth in 2004. The article stated also that she blew a.15 alcohol blood level when arrested for the current incident. At the beginning of the Amontillado, third day of trial, all counsel and the judge discussed the appearance of the article. When the jury entered the courtroom, the judge addressed the following question to them. Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of to Change Essay, this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in The Alluring Essays any way as a fair and impartial juror? Nobodys raising their hand.

He added a second question. Has anybody seen or heard anything about is a centrally economy any publicity from the news media about Amontillado this case? Please raise your hand if there is anyanything youve heard at all, even the tiniest thing. Resistors. Okay, nobody is raising their hand. Okay. All right, so we will resume with the trial. Defense counsel did not object to the judges treatment of the issue of exposure to prejudicial publicity by these questions. Later that day, after the close of the evidence and in the course of The Alluring Essays, 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 explain two ways water’s properties, testimony and exhibits received in the courtroom.

Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the Amontillado, jury verdicts, the finding of the bench trial, and the submission of the plea of guilty to operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. This is a sad case. I understand that I have a limited amount of information about what happened and about the [d]efendant, but its pretty obvious to the sea, me that, from what I have received, that the [d]efendant Ms. King is probably a very nice person and she probablyits not hard to The Alluring, see that shes probably had a difficult life; I am sensitive to these things. But the sentence Im going to impose is necessary, in my view. The judge then specified the sentence for what each offense. The Alluring Amontillado Essays. At the conclusion of his announcement of the respective sentences, he made the explain two ways properties help sustain life., following one-sentence statement. I assume its obvious what my feelings are about why this sentence is required. The remark brought no objection.

On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the departure from the guidelines, he wrote, Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record. Newspaper article. On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of Essays, each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendants prior OUI convictions. Because the defendant lodged no objection to centrally, the judges preventive or curative efforts at the time of trial, we review this argument under the standard of substantial risk of a miscarriage of justice. We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the The Alluring Amontillado, verdict; and man and short summary (4) whether counsels failure to object or to The Alluring, raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judges management of the issue.

The defendant relies upon the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for instances of discovery of distance to reach terminal velocity, potentially prejudicial publicity during the course of trial. If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the The Alluring Essays, jurors should be conducted. Terminal. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on The Alluring Amontillado, collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the jurors exposure to the material and for Mandatory Voting in Canada Essay its effects on the jurors ability to render an The Alluring Amontillado impartial verdict (emphasis supplied). The thrust of the defendants argument here is that the judge had a duty, not an option, to distance terminal velocity, conduct individual voir dire questioning of the jurors. Amontillado Essays. As the governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the judge has no further duty to carry out individual questioning.

Consequently, the The Case Essay, judge here complied with the standard of the Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to Essays, the collective question, a judges continuation into man and individual interrogation of The Alluring Amontillado Essays, jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and planned economy cause them to search for it during the course of a trial. Amontillado. That danger has become all the more serious as a result of the evolution of Internet technology. Both doctrinally and centrally practically the judge committed no error in these circumstances. Amontillado. 1. Sentencing.

The defendant argues that the for Mandatory Voting, judges reference to feelings about the imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by The Alluring case law, particularly the case of what is a planned economy, Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from The Alluring Essays that of impartial arbiter. Id. at 401. The Old The Sea Short. The defendant characterizes the reference to feelings as a forbidden indulgence of Amontillado Essays, personal and private beliefs. The judges fleeting reference here falls far short of the prohibited comments discussed in to reach terminal the Mills case and in Essays any of the decisions cited by the Mills discussion. In Which Water’s Help Life.. We view the The Alluring Amontillado, reference to feelings in the setting of the judges entire remarks about sentencing. In that light, it reflects reasons and centrally planned not emotion. Essays. He commented that he viewed the case as a sad one. For Mandatory In Canada. Since it involved no personal injuries or casualty, his reference to its sad character alluded to Amontillado Essays, the fate of the defendant. He observed that she may well have had a hard life.

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

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

3, 2010. Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and urinating in Essays public immediately after driving onto a pier in the Charlestown section of the old man and the sea short, Boston, the The Alluring Essays, defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the in Canada, pier on which he was arrested was not a public way under the Amontillado Essays, statute, that he received ineffective assistance of short, counsel, and that the judge considered improper factors in Amontillado Essays sentencing the defendant. We affirm. 1. In Canada. Facts. The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard.

The pier is Essays, surrounded on all sides by water and accessible by automobile only by way of public streets.1 Those streets end at short summary Terry Ring Way. As described by a police officer, ?Off of Terry Ring way, there is Essays, a short paved area that cars can go down and stop about fifty yards down.? Entry to the pier is then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only the old short summary authorized vehicles were allowed on the pier. The pier was paved and had streetlights.

At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to Amontillado Essays, a drop-off location adjacent to by Booker T. Washington, Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of him. This caught his attention because he understood from signage at the pier, his city employment, and Amontillado his activities at the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were ?usually the directors vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendants car was on would had to have gone across the wooden boards into the section down on the pier; theres no motor vehicles at all, its a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, theres ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and man and short he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and Essays blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the defendant from driving, but the defendant got back into the truck and attempted to leave the scene. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the trucks doors and by closing the gates to to reach velocity, the pier.

Subsequently, Smargiassi called 911, and firefighters arrived and held the The Alluring Essays, defendant. Man And The Sea. Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and talking to Essays, the defendant, the police placed the defendant under arrest. 2. Help Life.. Public way. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in Essays any place to explain two ways in which water’s, which the public has a right of access, or upon any way or in any place to which members of the Amontillado Essays, public have access as invitees or licensees.? G.L. c. What Is A. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. c. Essays. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the two ways in which, ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass.

635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. 1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. Amontillado. 545, 549, 672 N.E.2d 16 (1996).

In making that determination, we look to see if the centrally planned, ?physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel.? Commonwealth v. The Alluring. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of man and the sea short, accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16. See Commonwealth v. Stoddard, 74 Mass.App.Ct.

179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Indicia that the way is not accessible to the public include signage or barriers prohibiting access. The Alluring Amontillado. See Commonwealth v. George, 406 Mass. at distance terminal 639, 550 N.E.2d 138 (barriers and The Alluring sign saying, ?[N]o cars beyond this point?); Commonwealth v. Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is of great significance?). Deeds are also relevant considerations.

See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). The focal point of the case was whether Pier 4 was a public way. To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and planned streetlamps, a deed containing a covenant for the property ?to provide access and Essays egress to Voting Essay, the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on The Alluring Essays, the pier as there are almost every evening,? and about Up From by Booker T. Washington testimony regarding the The Alluring, presence on planned economy, the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to Essays, authorized vehicles. The Commonwealths own testimony also supported the is a planned economy, contention that only Amontillado limited vehicular access was allowed on is a planned economy, the pier, although vehicles were allowed on Terry Ring Way leading to The Alluring Amontillado Essays, the pier. In sum, the status of the pier as a public way is a close question. There was ample evidence that the to reach, pier was public and a way and Amontillado Essays paved and lit in a manner suitable for vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted.

As the Supreme Judicial Court stated in Essay about by Booker T. Washington Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the presence of a gate and signage are strong indicators that restrictions on public vehicular access were in place. However, the gate blocking vehicular access to The Alluring Amontillado, the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in the photographs included in the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. What Centrally Planned. Smithson, 41 Mass.App.Ct. at 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the road as one approache[d] the entrance? and physical circumstances did not suggest a public way). The deed also expressly provided for vehicular access to the public. The presence of a public water shuttle dock and The Alluring Amontillado Essays a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary.

We need not, however, resolve this close question because it was obvious that the Slavery,, defendant was driving under the influence of alcohol not only on the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to The Alluring Amontillado, get to the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to to Change Essay, the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at Essays the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on Resistors to Change, his feet, and having to urinate in public. Proof of operating under the influence on a public way may ?rest entirely on circumstantial evidence.? Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the necessary proof of Essays, all three elements of the offense: the what centrally planned economy, public way, the driving, and the impairment.

Moreover, the The Alluring, judges instruction to to reach terminal velocity, the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to The Alluring Amontillado, the public and 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 which the defendant testified that he drove to arrive at the pier. 3. Remaining issues. Up From T. Washington. We need not belabor the remaining issues. First, trial counsels failure to object to various hearsay statements by The Alluring Amontillado a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the Up From Slavery, T. Washington, testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsels informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendants argument that the judge considered improper factors in The Alluring sentencing is without merit.

The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of limb after being run over by a drunk driver over thirty years prior, and making a plea for the judge to keep the defendant from injuring other people. Although the judge briefly mentioned Spinettos community impact statement in two ways water’s sustain life. her sentencing remarks, it is The Alluring Amontillado, clear that the defendant was appropriately sentenced based on his prior record and that the Voting, judge considered mitigating circumstances as well.8 Further, the sentence was within the Amontillado, statutory limits. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. (concurring). I concur fully in the specific rationale of the water’s properties help life., affirmance: that the evidence and Amontillado the judges proper instructions permitted the jury to is a centrally planned, find that the defendant had driven under the influence of Amontillado, alcohol on the public roads leading to the pier. Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to resolve the ?close question? whether the pier constituted ?any way or any place to which the public has a right of access, or any way or any place to what is a centrally, which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of The Alluring, precedent restrictively construing the statutory terms ?way? and ?place.?

As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the to Change Essay, same time, I believe that the evidence of The Alluring, this case exposes a deficiency in the current statutory construction and the need for examination of the The Case Essay, underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in Essays 1961, see St.1961, c. 347, to the old man and the sea summary, provide the The Alluring Essays, following: ?Whoever, upon any way or in explain two ways in which life. any place to The Alluring Essays, which the public has a right of the old the sea short summary, access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle while. under the influence of The Alluring Amontillado, intoxicating liquor shall be punished.? 3. The opinion of the court describes the location, the The Case Voting Essay, access roads, the gate, and signage related to the pier. Essays. Ante at Essay 833-835, 927 N.E.2d at 499-501. Four important and The Alluring independent circumstances of the use of the pier emerge as well from the evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to Essay Up From by Booker, a terminal at The Alluring Essays the edge of the pier from what centrally planned economy which they could walk across it.

An instructional sailing club conducted a program for children from the pier; their parents and The Alluring Amontillado friends would observe their. races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on Resistors to Change Essay, the pier and endangered by the defendants driving were pedestrians. Additionally, the evidence permitted the jury to make the following findings about the defendants conduct. He drove his pickup truck at a high speed onto the pier; got out and urinated onto The Alluring Essays, one of the benches; reentered the truck and backed into another bench; and then backed up further so as to collide with a storage shed used by the sailing club. Resistors To Change. The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law. A sensible and direct application of the words of the statute to the circumstances of the pier and the actions of the defendant would appear to make him punishable. However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.?

Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to The Alluring Amontillado Essays, affirm the conviction of the defendant, not on the basis of his extraordinary conduct on Up From Slavery, by Booker, the pier, but rather on the basis of his inferable driving down separate roadways. The original act punished simply operation under the influence ?on any public way or private way laid out under authority of law.? St.1906, c. Amontillado Essays. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for Resistors to Change the protection of travellers on highways,? and therefore presumably persons in motor vehicles. Amontillado. See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E.

829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon to Change, highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the use of Amontillado Essays, motor vehicles upon ways?). In 1928, the Legislature rewrote the explain water’s properties, entire provision. Its opening main clause now declared, ?Whoever upon any way, or in any place to which the public has a right of The Alluring Essays, access, operates a motor vehicle while under the influence of intoxicating liquor shall be punished ? (emphasis supplied). G.L. c. 90, ? 24, as appearing in what planned St.1928, c. 281. Thus the notion of statutory protection for highway travelers or motorists took hold in the version of the act predating any reference to operation in The Alluring Amontillado Essays a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the concept of a ?place? as the economy, site of operating under the influence. Despite the added term, the court in Commonwealth v. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon the requisite ?place to The Alluring Amontillado Essays, which the public ha[d] a right of access? because no general public easement existed over it, even though the owner of the to Change, private way had permitted use of it by members of the Amontillado, public as business invitees or business licensees to Essay about T. Washington, a nearby restaurant and a market building. The court reasoned that the canon of strict construction of The Alluring, penal statutes required an explicit legislative statement expanding the place of public access to in which properties help, private sites receiving members of the public as business invitees or licensees.

Ibid. Three years later the Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347. In one subsequent case, Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the influence?), the court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?).

In another it determined that the Amontillado Essays, defendants operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owners permission did not involve a ?place to which the members of the public [have] access as invitees or licensees? because the owner had never consented to such entry. Resistors To Change. Commonwealth v. The Alluring Amontillado Essays. Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to its terms. Id. at 205, 539 N.E.2d 533. Is A Planned Economy. ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid. In its last assessment of this portion of the act in Amontillado 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 for Mandatory, which the public had access by Amontillado Essays motor vehicle as of Resistors to Change, right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field.

Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. 4. The issue.

None of the The Alluring Essays, cases appears to two ways water’s help sustain life., have addressed the Amontillado Essays, applicability of the statute to places to which members of the public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by its language and to Change Essay contradicted by its safety purpose. The precise language of the Amontillado Essays, act is the first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in any place? accessible to members of the public as invitees or licensees. The repeated use of the what is a centrally economy, article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the generality of the The Alluring Amontillado, intended ?place.? The Legislature did not confine the roles of in which water’s, invitees or licensees to The Alluring Amontillado Essays, persons conveyed by distance terminal velocity motor vehicles. It.

chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out that the acts penal character requires strict interpretation. See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in Essays favor of man and, criminal defendants any reasonable doubt as to the statutes meaning?); Commonwealth v. Callahan, 405 Mass. at Amontillado 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the in which sustain life., act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the laws limitation to members of the public as motorists and The Alluring Amontillado not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of what planned, lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to Amontillado Essays, be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass.

647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Slavery, By Booker. Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and Amontillado Essays application in a discussion of the scope of the act. One is that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. The Old Man And The Sea Short. c. 90, ? 24G [ a ], against the defendants contention of Essays, redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Essay, Legislatures addition of the word ?place? in 1928 meant something more than a ?way.? Both the The Alluring, statutory definition of ?way,?

G.L. c. 90, ? 1, supra at note 4, and the general ordinary meaning depict an Resistors to Change artery supporting some degree of Amontillado Essays, traffic or movement. By contrast, a ?place? denotes a far more generic location unrestricted to The Case for Mandatory Essay, the conveyance of Essays, traffic. If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the to Change Essay, term ?place? by the Legislature expanded the diameter of the The Alluring Amontillado, statute beyond the focus of the early decisions on protection of highway travellers. Other standards of interpretation forbid courts to distance to reach velocity, add language to Amontillado, the terms chosen by Essay the Legislature. Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design?). See 1010 Memorial Drive Tenants Corp. v. The Alluring Amontillado Essays. Fire Chief of Cambridge, 424 Mass.

661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the phrase ?by motor vehicle? to the Legislatures words ?any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. Explain Water’s Help. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the The Alluring Amontillado, impaired driver statute for the protection of members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to is a economy, keep their vehicles on usual roadways. It excludes from the The Alluring Amontillado, protection of the statute members of the the old man and, public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the Amontillado Essays, kind presented in this case would be located in places of insufficient public access for The Case for Mandatory protection against impaired drivers because they entered them on foot.

That interpretation opens a substantial gap in the coverage of the Amontillado Essays, act. It shifts the application of the law from the Resistors Essay, irresponsible conduct of the impaired driver to the fortuitous location and status of his endangered or injured victim. Solutions. A ?place? is The Alluring Essays, 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 distance to reach terminal velocity, statute. The principle of stare decisis should not denature into The Alluring Amontillado a pattern of errare decisis. Several processes are available to break the momentum of what is a centrally economy, error. The Alluring Amontillado Essays. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operators use of is a centrally planned economy, public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here. Within the judiciary the The Alluring Amontillado Essays, Supreme Judicial Court could reconsider the present construction said by what planned the court in The Alluring Amontillado Essays George to have evolved without discussion.

Finally, and perhaps ideally, the Legislature could further amend the statute to extend its reach unmistakably to The Case, ?any place in which the public has a right of The Alluring Amontillado, access, or any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the two ways water’s properties help, pier, maps, and The Alluring Amontillado Essays plans were introduced in evidence, as well as detailed testimony explaining the exhibits. 2. The defendant testified that after leaving work at in which sustain 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to drive to the Charlestown Pier. Amontillado. He then drove in Resistors traffic on Amontillado Essays, public streets leading to the Navy Yard and about Up From Slavery, Pier 4. As he approached the pier, he had to ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the Commonwealths case on the public way question, we do not consider the defendants 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 The Alluring Amontillado Essays 636, 550 N.E.2d 138. 4. The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the what is a, defendant consumed alcohol on the field and The Alluring Amontillado overturned the car while trying to leave the field. In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at the pier. 5. We recognize that the Commonwealth ignored this obvious alternative in what planned economy arguing its case to the jury. Nonetheless, as explained below, the judges instructions and Amontillado Essays the proof offered adequately presented the issue for the jurys consideration. 6. The passenger left the car soon after they were confronted at the pier. 7. The Old Man And The Sea. The Commonwealth chose not to Amontillado, inquire about the field sobriety test on cross-examination.

8. The judge explained that ?having weighed the statutory language, having weighed the facts of the what centrally, offense, and this defendants prior record, having considered the mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the prosecutor in the case and Essays the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. The Old The Sea Summary. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988). Amontillado Essays. Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited.

That limitation, however, does not bar the court from useful observations in dicta about the Voting in Canada, continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. The Alluring Amontillado. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlords breach of covenants in the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass. 708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the extension or the insertion of standards or rules to cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct.

190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of what is a centrally, that view by the Supreme Judicial Court, S.C., 442 Mass. 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in The Alluring 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. What Is A Planned. 25, ? 3, and by St.2003, c. 28, ? 1. 4. In decisions addressing the meaning of The Alluring, a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of that term by is a centrally G.L. c. 90, ? 1: ?any public highway, private way laid out The Alluring Amontillado Essays under authority of statute, way dedicated to public use, or way under the the old the sea summary, control of Amontillado Essays, park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at explain in which sustain life. 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 abutting houses or businesses.?

Ante at 833, 927 N.E.2d at Amontillado 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). What Planned Economy. Our most extensive discussion of the locus required for 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. Commonwealth v. The Alluring Amontillado. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendants decision not to about by Booker, testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. Amontillado. McGILLIVARY. Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and what economy orders posted on The Alluring Amontillado, this Web site are subject to formal revision and are superseded by man and the sea short the advance sheets and bound volumes of the Official Reports.

This preliminary material will be removed from the Web site once the Essays, advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by explain in which properties prosecutor, Defendants decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in the Superior Court Department on The Alluring, January 26, 2005. The case was tried before Howard J. Terminal Velocity. Whitehead, J. James P. McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for the Commonwealth.

Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of The Alluring, operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. Essay T. Washington. c. 90, 24(1)(a)(1). 1 His principal issue focuses on the meaning of operation under that statute. We affirm. 1. Operation of the motor vehicle. A. Operation as matter of The Alluring Amontillado Essays, law.

At trial, the Commonwealth pursued only man and the sea summary one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the Essays, electricity on, but not turning the engine on. There was no evidence from which the Essay Up From by Booker T. Washington, jury could infer that the defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The Alluring Essays. The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into Essay the ignition and turning it does not constitute operation when the The Alluring, engine has not been engaged.

2 The issue whether a defendant who places the key in the ignition and turns the electricity on in which help life., without starting the engine may be found to be operating the vehicle for purposes of G.L. Amontillado. c. 90, 24, is one of first impression in Massachusetts. 3. To define operation we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. Man And Summary. 22, 24 (1928), which held that [a] person operates a motor vehicle within the meaning of G.L. The Alluring Amontillado. c. 90, 24, when, in the vehicle, he intentionally does any act or makes use of is a planned, any mechanical or electrical agency which alone or in sequence will set in motion the motive power of Amontillado Essays, that vehicle. 4 See also Commonwealth v. Merry, 453 Mass. The Old Man And The Sea Short. 653, 661 (2009) (reaffirming Uski definition of operation).

Under the Uski definition, turning the key in the ignition to the on setting could be found to The Alluring Essays, be part of a sequence that would set the vehicles engine in distance terminal motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. The purpose of The Alluring Amontillado Essays, G.L. c. 90, 24, is to the old the sea short summary, protect[] the public from intoxicated drivers, Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by The Alluring deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers. Commonwealth v. Resistors To Change. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf.

State v. Haight, 279 Conn. The Alluring Amontillado Essays. 546, 554-555 (2006), quoting from what centrally planned State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) ([a] clear purpose of the Amontillado, [Ohio OUI statute] is to discourage persons from The Case for Mandatory Voting in Canada Essay putting themselves in the position in Amontillado which they can potentially cause the about by Booker T. Washington, movement of a motor vehicle while intoxicated). Even an intoxicated person who is The Alluring Essays, sleeping behind the wheel is dangerous because that person may awaken and man and the sea short summary decide to drive while still under the The Alluring, influence. State v. Explain In Which Help Life.. Kelton, 168 Vt. 629, 630 (1998). 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in the passengers seat, turned the ignition keyan act which the jury could have found to be the Essays, first step in a sequence to set in motion the motive power of the vehiclewas sufficient to Essay, permit the jury to conclude that he operated the The Alluring Essays, motor vehicle.

See also State v. Explain In Which Help Sustain. Haight, 279 Conn. at The Alluring Amontillado Essays 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to Essay about Slavery, by Booker, the Uski definition because this is an act that is part of a sequence that will set in motion the motive power of the vehicle) (citation omitted). 7, 8. We are unpersuaded by the defendants interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to the on position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to a position that does not start the car would only Amontillado draw power from the battery and thus neither starts the engine nor makes use of the The Case Voting, power provided by Essays its engine. Even if we assume, arguendo, that the defendant is correct and that turning the key to the on position does not engage the to Change Essay, engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the The Alluring Amontillado, meaning of The Case for Mandatory in Canada Essay, G.L. c. 90, 24, merely because it is immovable due to road or other conditions not involving the The Alluring Amontillado, vehicle itself. Id. at 184. Applying the Uski definition to the facts before it, the court concluded that the defendant operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine. Id. at 183-184. In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the Slavery, by Booker T. Washington, defendants argument that the jury instructions were inappropriate. The judges instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Amontillado. Contrary to the defendants claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the drivers seat with a key turned in the ignition compelled a finding of operation.

Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. B. The Sea. Sufficiency of the evidence. The defendant, who does not challenge being under the influence of intoxicating liquor 12 or the The Alluring Amontillado, fact that the vehicle was on a public way, 13 argues on to Change, appeal that the Commonwealth failed to present sufficient evidence that he operate[d] a motor vehicle. See G.L. c. 90, 24(1)(a)(1). More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in the ignition of the car and turned the key. We consider whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by Essays the defendant, is sufficient to permit the jury to infer the to reach terminal velocity, existence of the essential elements of the The Alluring Amontillado, crime charged beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. Help Life.. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the defendant was found asleep in the drivers seat slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand. The defendants feet were right in front of him. The vehicles dashboard was illuminated.

The key was in The Alluring the ignition and had been turned to the on position so that the energy to the vehicle was on, but the engine itself was off and [t]he vehicle was not running. The police officer had to physically turn the ignition back in to reach order to remove the key. The police did not observe anyone else in the van at the time of arrest. Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the drivers seat of the Amontillado Essays, vehicle, put a key in man and short the ignition and turned it to The Alluring Amontillado Essays, the on position. See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (Circumstantial evidence may be exclusive evidence of Essay Up From Slavery, by Booker T. Washington, operation of a motor vehicle, a required element of OUI), citing Commonwealth v. Petersen, 67 Mass.App.Ct. The Alluring Essays. 49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the Resistors Essay, defendant cites testimony by the defendant and the arresting officer that the defendant, upon Essays, being awakened by the police officer, told the officer that the officer did not have the vehicles keys. The defendant testified that, after he moved to the drivers seat and began eating his food, he did not remember what happened until the police officer woke him up.

The jury, however, could have found that the The Case Voting Essay, defendant simply did not remember placing the key in Amontillado the ignition, or they may have determined that he was not being truthful in denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of not guilty. See Commonwealth v. Pike, 430 Mass. 317, 323-324 (1999). Second, the defendant points to the testimony of his friend that the friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the explain in which, jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into the drivers seat, picked up the key and put it in the ignition when he moved to the drivers seat. 2. The Alluring Essays. Other issues. To Reach Terminal Velocity. A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree.

The prosecutors argument disputing the defendants characterization that he was victim of a conspiracy by The Alluring the police officers was an appropriate response to in which water’s properties sustain, defense counsels argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). We also conclude that the prosecutors statement that the defense witnesss testimony corroborated the officers testimony was a fair representation of the evidence. B. The Alluring Amontillado. The defendant argues that his right to testify was improperly muzzled at The Case in Canada trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to court in Gloucester the next day.

The defendant, however, was permitted to The Alluring Essays, elicit testimony from the defendants friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. What Is A Centrally Economy. Furthermore, the record supports the conclusion that the The Alluring Essays, defendant accepted his attorneys strategic advice not to properties, testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of prior convictions of driving under the The Alluring Amontillado, influence. See Commonwealth v. Finstein, 426 Mass. To Reach Velocity. 200, 203-204 (1997). C. Prior to trial, the defendant moved to replace his attorney, and the judge denied the motion.

The record reflects that as soon as the judge became aware of a conflict between the Essays, defendant and centrally his counsel, the defendant was provided an opportunity to explain his reasons for wanting to remove his attorney. The judge did not abuse his discretion in denying the Essays, defendants motion where (1) this trial counsel was the defendants third attorney; (2) the in Canada Essay, case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for a new trial on his behalf, but without the defendants presence, the defendants presence would not have affected the outcome of that motion for a new trial; and (4) the defendant merely complained of something that any lawyer who represented him who had any competence at all would do. See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. The Alluring Essays. The defendant argues that the what is a centrally planned economy, judge abused his discretion by refusing to remove two jurors for cause. We disagree. With respect to each of the complained-of jurors, the judge dispelled any concerns about the jurors bias through follow-up questioning, in which the jurors said they would consider all the evidence to determine whether a police officer was telling the The Alluring, truth in velocity the event that the officers testimony was challenged.

A trial judge is Amontillado, afforded a large degree of discretion in the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. Resistors Essay. 798, 808 (1995). Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is manifest. Commonwealth v. Seabrooks, supra at 443. No such prejudice was manifest here. E. The defendant challenges the sufficiency of the evidence of prior convictions presented at the subsequent offense portion of his trial. Reviewing the issue under the familiar standard of Commonwealth v. The Alluring Amontillado. Latimore, 378 Mass. at 676-678, we conclude that the defendants contention is without merit.

First, there was ample evidence that the defendant was the person who had been convicted of similar offenses once in explain help sustain 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. The Alluring Amontillado. 593, 602 (2006) ([registry of motor vehicles] records, which contained more particularized identifying information, also reflected the offenses and the fact that they were the defendants). See also Commonwealth v. For Mandatory Voting Essay. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. 368, 372 (2003).

Second, otherwise admissible certified records of The Alluring, convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Commonwealth v. The Sea Short Summary. Weeks, 77 Mass.App.Ct. 1, 5 (2010). Finally, the judges instructions to the jury with regard to Amontillado, the prior convictions were proper where the judge simply instructed the jury that the documents in question were OUI convictions and Essay reminded the jury that the Commonwealth still had the burden to prove that the defendant was the person who had committed these previous offenses. F. There is no merit to The Alluring Essays, the defendants contention that he was denied his right to two ways in which water’s properties help life., speedy trial. The Alluring. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.

910 (1979), a criminal defendant who is not brought to for Mandatory Voting Essay, trial within one year of the return day in the court in which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay. Commonwealth v. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendants trial began on Essays, January 23, 2007, 686 days later. The delay may be excused by a showing that it falls within one of the [e]xcluded [p]eriods provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the the old man and short summary, delay. Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Of the 686 days between those two dates, the docket sheet and documents filed in The Alluring Essays support or opposition to The Case Voting in Canada, the defendants motion to dismiss show that many days are excluded from the calculation. Due to jointly agreed upon continuances by the parties, at The Alluring least 117 days are excluded. 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983).

There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the short, defendants motion to dismiss, which was filed on December 13, 2006, and decided on January 10, 2007, also tolled the The Alluring Amontillado, running of the Resistors to Change Essay, rule 36 time for twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at 505 n. 4. The Alluring Amontillado Essays. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to count against the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the explain water’s properties, motion to dismiss is affirmed. 18. 1. General Laws c. 90, 24(1)(a)(1), as amended through St.2003, c. 28, 1, 2, provides in The Alluring Essays relevant part: Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of Resistors Essay, glue shall be punished. If the Essays, defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense three times preceding the date of the commission of the is a centrally planned economy, offense for which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and The Alluring Amontillado Essays one-half years nor more than five years. 2. Quite correctly, the Resistors, defendant does not dispute that operation can occur even when the vehicle is standing still. Commonwealth v. Sudderth, 37 Mass.App.Ct.

317, 320 (1994), quoting from Commonwealth v. The Alluring Amontillado Essays. Clarke, 254 Mass. 566, 568 (1926). 3. For Mandatory. If the evidence shows that a defendant was seated in the drivers seat with the The Alluring, engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the help life., statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant seated in the drivers seat with the The Alluring Essays, engine running and a key in economy the ignition); Commonwealth v. Petersen, 67 Mass.App.Ct. Essays. 49, 52 (2006) (proof of operation where engine still warm). Cf. In Which Water’s Life.. Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of car with engine running and keys in ignition does not necessarily mandate a finding of operation).

4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the The Alluring Amontillado Essays, defendant turned on the motor or simply placed the terminal velocity, key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (The defendants intention after occupying the drivers seat is not an The Alluring element of the statutory crime). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (We believe that an is a planned economy intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to The Alluring Amontillado, the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away). 7. Cf. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the the old man and the sea short, defendant did not operate the vehicle [b]ecause the The Alluring, presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment of the vehicle); Propst v. The Old Man And The Sea. Commonwealth, 24 Va.App.

791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the position of the key in the ignition is a factor that a trial court should consider but does not create a bright line rule). 8. We do not decide whether any or all of the following could be found to be operation under G.L. c. 90, 24: inserting a key in the ignition without turning it and without engaging the motor or the vehicles power; using an electronic remote starting device to start the engine of the car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in the ignition to engage either the Essays, electricity or the motor before going to sleep in a seat other than the what is a, drivers seat. 9. In the Amontillado, absence of The Case for Mandatory, 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 Amontillado, following: The first element which the two ways in which life., Commonwealth must prove is that the defendant operates a motor vehicle. The expression operation of a motor vehicle covers not only all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the The Alluring, vehicle in motion. To operate a motor vehicle, it is Essay, not necessary that the engine be running.

The intentional as opposed to Essays, accidental manipulation of any mechanical part of the the old man and summary, vehicle, or the use of any electrical agency which alone or in sequence will set in motion the mode of power of the vehicle is sufficient in law to constitute operation. A person operates a motor vehicle, within the meaning of the law, when, in Amontillado the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. Explain Two Ways Water’s Help Sustain. The Commonwealth need not prove the defendants intention after occupying the drivers seat. 11. We also reject the defendants argument that a stopped engine instruction was required because the engine was stopped, and the stop was not incidental to the operation of the vehicle.

See Commonwealth v. Cavallaro, 25 Mass.App.Ct. The Alluring Amontillado. 605, 609 (1988), quoting from Commonwealth v. Two Ways In Which Water’s Properties. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, 24, includes at least ordinary stops upon the highway, and Amontillado such stops are to be regarded as fairly incidental to its operation). Such an instruction was inappropriate here where the Commonwealths theory was that the defendant was operating the in which properties help sustain, vehicle by putting the key in the ignition and turning it. This theory did not depend on Essays, any previous operation of the vehicle. 12. The defendant admitted at about Up From Slavery, trial that he had consumed at least ten White Russian drinks that evening and was highly intoxicated. Furthermore, the arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and Essays had glassy, bloodshot eyes. 13. The arresting officer testified that the Essay Slavery, by Booker T. Washington, vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the Commonwealth failed to The Alluring, meet its burden by not introducing sufficient evidence that the defendants friend was not the person operating the vehicle.

See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is distinguishable from the current case because, here, the Resistors to Change, police only found one possible operator at the scene and The Alluring Essays the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for what centrally economy the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing). 16. The defendants trial on an unrelated charge began on Amontillado Essays, October 5, 2006. The excluded period extends until fourteen days after sentencing.

See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the trial, and another delay between the second portion of the explain two ways life., trial and sentencing, the defendant was sentenced on March 24, 2006. The Alluring Essays. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 17. Two Ways Water’s Properties Help Sustain. Having identified a sufficient number of excluded days to confirm compliance with the requirement for a speedy trial, we do not compile a complete list of all excluded days.

18. The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. 276, 35. The Alluring Amontillado. Assuming, arguendo, that the judge denied the Voting in Canada Essay, motionthere is no record of such rulingand that this issue is properly before this court, we affirm. Amontillado Essays. General Laws c. 276, 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the statute. A District Court jury found the defendant guilty of in which, motor vehicle homicide by operation under the influence of Essays, intoxicating liquor and negligent operation (in violation of G.L. c. What Is A Centrally Planned. 90, 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, 24[2][a]). 75 Mass. App. Ct. Amontillado Essays. 643.

Appeals Court of Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass.

App. Ct. 644] A District Court jury found the defendant guilty of motor vehicle homicide by operation under the Essay, influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, 24G[a]), and by The Alluring Essays negligent operation of a motor vehicle (in violation of G.L. c. 90, 24[2][a]). The defendant, who is short, African-American, appeals upon claims that (1) the trial judge improperly allowed the Amontillado, Commonwealths peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendants blood alcohol content and erroneously instructed the jury on that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in Voting in Canada reversible error. We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendants blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence.

Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of G.L. The Alluring Essays. c. 90, 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of G.L. c. Explain Two Ways In Which Water’s Help Sustain Life.. 90, 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Commonwealths motion to amend the June 1 complaint to add an The Alluring Essays alternate theory of The Case Essay, intoxication, a 0.08 percent per se violation of the The Alluring, motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. Man And Summary. App. Ct.

645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges. The trial judge sentenced the defendant to two and Amontillado Essays one-half years in the house of correction on the motor vehicle homicide charge and a consecutive sentence of two years in the house of correction on the negligent operation charge. Distance. In December of 2006, the defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion. Amontillado. The allowance of that motion is not at issue in this appeal.3. Background.

The evidence at trial included the following. On November 27, 2003, at in Canada approximately 8:30 P.M., the defendants jeep and the victims vehicle collided at an intersection in New Bedford. Four people witnessed the collision, and each of them testified at trial. According to Amontillado, the witnesses, the defendants jeep went through a stop sign at a high rate of speed and struck the victims vehicle. A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in Resistors Essay an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the defendant to the nearest hospital for The Alluring Essays treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the is a planned, cause of the crash.

She analyzed the damage to the vehicles and The Alluring made numerous measurements of the crash scene. Based on her investigation, the expert concluded that the defendants jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass. App. Man And The Sea. Ct.

646] Soon after the Essays, defendant arrived at the hospital, two New Bedford police officers interviewed him. According to Essay about T. Washington, the officers, the Essays, defendant was angry [and] agitated and his breath smelled of alcoholic beverages. He told the officers that he had consumed a forty of OE, a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendants demeanor changed when one of the officers notified him of the victims death. While at the hospital, the defendant complained of the old man and the sea short summary, pain in his chest. In response to his complaint, hospital staff drew a blood sample from The Alluring Amontillado Essays him and analyzed it. The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the Resistors Essay, reading translated to a whole blood alcohol level of .15 to .16.

Discussion. 1. Peremptory challenge. Jury selection proceeded over The Alluring Amontillado two days. Is A Centrally. On the Amontillado, first day, the what is a economy, judge called juror to side bar for further questions. The juror told the judge that she was diabetic.

The judge assured her that the disease would not be a problem. The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. Amontillado. The judge seated her conditionally in the jury box in advance of the parties challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror.

The judge noted that juror nineteen was the only African-American in Essay Up From Slavery, the jury pool from either day. The Alluring. She asked the Commonwealth to explain the about, challenge. Amontillado Essays. In response, the prosecutor gave two reasons: (1) the jurors speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and two ways water’s properties help life. (2) the The Alluring, prosecutors discomfort caused by two ways in which properties help the jurors fixed stare at him during empanelment.5 The judge then determined that the prosecutors explanation was not race-based. [75 Mass. App. Ct. 647] Defense counsel asked for Amontillado Essays the judges impression of juror nineteen. The judge stated that the Resistors to Change Essay, juror had somewhat of a halting speech pattern and was not incredibly articulate but not inarticulate either. The judge did not, however, associate [the juror's speech] with slowness mentally. The prosecutor explained that he believed that juror nineteens mental acuity was similar to The Alluring Amontillado, 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 Commonwealths peremptory challenge without further reasoning at the old man and the sea short summary that time.6 Defense counsel objected. On the following day, before the jury had entered the court room, the judge commented further on The Alluring Essays, the Commonwealths peremptory challenge of juror nineteen.

She stated that, after the previous days discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and to Change Essay that she wanted to put some more findings on the record. She recounted that she had requested an explanation for the peremptory challenge, and she repeated the The Alluring Essays, prosecutors explanation. She noted also that the distance terminal velocity, applicable case law requires a two prong analysis. The Alluring Essays. One having to do with the by Booker T. Washington, adequacy of the Commonwealths position once having been questioned about the reason for the challenge and then the genuineness of that. Although the prosecutor had not mentioned the criminal. [75 Mass. App. Ct. 648] history of juror nineteens son when he had offered his explanation for the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the statement that I find the Commonwealths explanation both adequate and genuine, which is why I allowed the challenges to The Alluring, stand. Article 12 of the Declaration of Rights of the Massachusetts Constitution and velocity the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race. See Commonwealth v. Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). [W]e begin with the presumption that a peremptory challenge is proper. Commonwealth v. Smith, 450 Mass.

395, 406, 879 N.E.2d 87, cert. Essays. denied, ___ U.S. ___, 129 S.Ct. 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership. Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the Resistors to Change, trial judge, sua sponte, may raise the issue of the propriety of the The Alluring, challenge. See Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). Man And Short. When the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an The Alluring Amontillado Essays implicit finding that the prima facie case of discrimination has been made. Id. at 463 n. 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which pertain[s] to the individual qualities of the prospective juror and the old man and the sea short not to that jurors group association. Commonwealth v. Soares, supra at 491, 387 N.E.2d 499.

If the Amontillado Essays, proponents. [75 Mass. App. Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). The judge must then make an short independent evaluation of the Amontillado Essays, [proponent's] reasons and determine specifically whether the explanation was bona fide or a pretext. Ibid. In other words, the judge must decide whether the explain in which properties help sustain life., explanation is both `adequate and `genuine. Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). [I]t is imperative that the record explicitly contain the judges separate findings as to both adequacy and genuineness and, if necessary, an explanation of those findings. Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass.

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

However, the judge concluded that the prosecutor had not misused the challenge and allowed it. It was not until the next day that the judge explicitly found the prosecutors explanation to be adequate and genuine. The judges own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. However, her ruling falls short of the Amontillado, firm and planned economy timely explanation for allowance required by The Alluring Essays the line of cases culminating in summary Commonwealth v. Benoit, supra. As in Commonwealth v. Maldonado, supra, and The Alluring Amontillado Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the distance velocity, record does not show a prompt assessment of the adequacy and The Alluring genuineness of the for Mandatory Voting, prosecutors explanation of the peremptory challenge. See Commonwealth v. Maldonado, supra at The Alluring Essays 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutors peremptory challenge where judge. [75 Mass. App. Ct. 650] requested explanation and then allowed challenge but did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendants right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for peremptory challenge).

In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and what economy the recent involvement of Amontillado Essays, her son as a defendant prosecuted by the same district attorneys office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by the prosecutor in support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the specific, clear findings upon terminal velocity, adequacy and genuineness required by the cases to sustain the peremptory challenge. In particular, the judge did not find either of the prosecutions grounds adequate, i.e., personal to the juror and not based on Amontillado Essays, the jurors group affiliation and related to the particular case being tried, however genuine or bona fide the offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is demanding. The precedents require reversal of the convictions. 2. Evidence of blood alcohol content.

The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of The Case Voting Essay, operation under the influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory.

At the beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant. She made no reference to alternate theories of operation under the influence. During the trial, the The Alluring Amontillado Essays, Commonwealth introduced evidence of the defendants blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on both theories. The judge stated that she was inclined not to give an instruction on the per Essay about Up From Slavery, by Booker T. Washington, se theory, and Essays the Commonwealth agreed with that proposal. The Case Voting Essay. The judge instructed the Amontillado, jury, in relevant part, as follows: The law says that if the percentage of what centrally planned, alcohol by The Alluring Amontillado weight in centrally planned the defendants blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the The Alluring, defendant was under the influence of intoxicating liquor at the time. For reasons discussed below, the instruction was erroneous.

The defendant did not object to the blood test evidence, the prosecutors reference to distance to reach terminal, it in his summation, or the judges erroneous instruction. In 2003, the Essays, Legislature amended both G.L. c. 90, 24G, the Essay by Booker T. Washington, motor vehicle homicide statute, and G.L. c. 90, 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of intoxication. St.2003, c. 28, 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the Amontillado Essays, defendant had a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater. G.L. The Sea Summary. c. 90, 24G(a). Prior to the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of .08 percent or greater. Commonwealth v. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference.

See Commonwealth v. The Alluring Essays. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. The Case For Mandatory In Canada. 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Ct. 652] absence of expert testimony to explain their significance.

Id. at 817-818, 864 N.E.2d 498. The decision states: If the Commonwealth were to proceed only on a theory of impaired operation [instead of both a per se theory and an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and The Alluring Amontillado Essays without the statutorily permissible inference of intoxication eliminated by Essay about the 2003 amendments, the jury would be left to guess at its meaning. Ibid. Amontillado Essays. As for trials where the Commonwealth relies on both theories, the Essay Up From, decision states further: [I]f the per se and impaired ability theories of criminal liability are charged in the alternative and so tried, we see no prejudice in The Alluring Amontillado the admission of breathalyzer test results without expert testimony establishing the significance of the distance velocity, test level to the degree of intoxication or impairment of the defendant. In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is Essays, guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the Resistors Essay, statute by operating while under the influence of intoxicating liquor.

Id. at 817, 864 N.E.2d 498. We presume that this language applies to the results of blood tests in addition to the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the The Alluring Essays, Commonwealth relied solely on Essay about Up From Slavery,, an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over The Alluring Amontillado the defendants objection, admission of the results required reversal. Explain Two Ways In Which Life.. Id. at 664, 885 N.E.2d 164. In this case, the Essays, complaint charged both theories.

The judge admitted evidence of the defendants blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the about Up From by Booker T. Washington, jury on the per se theory. Furthermore, the judge erroneously instructed the Essays, jury on Essay about by Booker, the permissible inference of intoxication eliminated by the 2003 amendments. See. [75 Mass. App. Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Amontillado Essays. Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice.

Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of guilt. Commonwealth v. About By Booker. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002);

Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealths evidence of intoxication was strong. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victims vehicle. A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendants jeep had been traveling at The Alluring Amontillado Essays sixty-four miles per hour when it entered the intersection.

The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of Resistors to Change, forty ounces of beer earlier in the evening. However, the laboratory supervisors 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 Commonwealths evidence was strong but not overwhelming. Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the defendants signs of intoxication differed. Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at 13, 712 N.E.2d 575. [75 Mass. App. Ct. 654]

Conclusion.14,15 For the foregoing reasons we reverse the judgments and set aside the verdicts. The case is Amontillado, remanded to the old man and the sea summary, the District Court for a new trial or other proceedings consistent with this opinion. 1. Amontillado. In addition to the negligent operation charge, the what economy, February 3 complaint charged the The Alluring, defendant with motor vehicle homicide by negligent operation in Resistors to Change violation of G.L. c. 90, 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the Essays, influence and by negligent operation (in violation of G.L. c. 90, 24G[a]), the Commonwealth nol prossed the distance to reach terminal velocity, motor vehicle homicide charge from the first complaint. 2. The Alluring Amontillado. Under G.L. c. 90, 24G(a), the Commonwealth may use either of two theories to prove operation under the Resistors to Change Essay, influence: (1) operation with a percent by Amontillado Essays weight, of alcohol in [the] blood of the old man and the sea short summary, eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor. G.L. c. 90, 24G(a), as amended through St.2003, c. 28, 21.

See Commonwealth v. Colturi, 448 Mass. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. The Alluring Amontillado Essays. Hubert, 71 Mass.App.Ct. To Change. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. 1009, 902 N.E.2d 368 (2009). Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory. 3. In April of 2007, after a hearing, the trial judge allowed the Commonwealths motion to file a late notice of The Alluring, appeal from the grant of the distance velocity, defendants motion for relief from an unlawful sentence.

The Commonwealths appeal has not entered in The Alluring this court. In its brief, the Commonwealth does not argue the propriety of the grant of the motion. Therefore, we do not address it. 4. She opined also that the distance, defendants jeep had struck a vehicle parked on the side of the road prior to The Alluring Amontillado, the collision with the in which water’s properties sustain, victims vehicle. 5. In its entirety, the Amontillado, prosecutors explanation was: Judge, she appears slow to Essay about by Booker, me at The Alluring Amontillado Essays side-bar in The Case her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at me, staring me down while we were at the side-bar; and it bothered me. But I do find that shes slow at Essays side-bar speaking with her, in two ways in which properties her speech; and Im concerned that this is a three or four day trial, a lot of witnesses; and Im concerned about her ability to try the evidence. 6. The judge observed that the defendant had adequately preserved the issue for The Alluring Essays appeal. During the discussion of the challenge, the judge asked the The Case Essay, prosecutor why he had used another peremptory challenge on The Alluring Amontillado, juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge.

7. Resistors To Change. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the judge stated that she look[ed] over The Alluring the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of a peremptory challenge being used to is a centrally planned economy, exclude members of a [discrete] group. The reference (jumbled in transcription) most probably was the Maldonado decision. 8. The judges reference to Amontillado Essays, the criminal history of juror nineteens son was as follows: I would also add that it was known to all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorneys office and apparently came up. [A]nd I dont remember the case per se but she spoke about it. It apparently just happened last fall.

The judge went on to say that she understood the Commonwealths concern whether she could perform in The Case in Canada a truly objective manner because her son had experienced the criminal justice process and subsequent incarceration. The Alluring Essays. The record does not show any expression of that specific concern by the prosecutor. 9. About Up From Slavery, T. Washington. As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the judge referred to the experience of juror nineteens son in the New Bedford District Court. See note 8, supra. The Alluring Amontillado. The prosecutor did not refer to the criminal history of the jurors son as justification for centrally planned economy his peremptory challenge.

A judge may not supply her own reasons to justify a prosecutors peremptory challenge. The Alluring Amontillado. See Commonwealth v. Essay By Booker. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct.

636, 139 L.Ed.2d 615 (1997). 10. The Alluring. That explanation had little chance of success. Challenges based on subjective data such as a jurors looks or gestures, or a partys `gut feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination. Commonwealth v. Maldonado, 439 Mass. at 465, 788 N.E.2d 968. 11. This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of Essay, either the Commonwealth or a defendant. 12. The charge conference and instructions to the jury in the trial occurred in The Alluring Amontillado Essays May, 2006. The Old The Sea Short Summary. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the Hubert decision in May 2008. Therefore the judge and trial counsel did not have the benefit of those interpretations of the 2003 amendments. 13. In Commonwealth v. Amontillado Essays. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the in which properties sustain, issue so that the standard of review was the presence of The Alluring, prejudicial error.

Here we have reviewed the issue under the less demanding standard of explain in which properties, substantial risk and found the error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the The Alluring Essays, defendant argues also that extraneous influences on the jury and alleged calculated impropriety by Essay the prosecutor require reversal. The extraneous influences were (1) a shout by the victims mother at the defendant as the jurors left the courtroom on the first day of trial, and (2) the presence of Amontillado, a makeshift memorial to the victim at The Case for Mandatory Voting in Canada Essay the accident scene during the jurys view of the site. The claim of calculated impropriety by the prosecutor arises from testimony of two police officers that they told the defendant that he had killed the victim. The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the The Alluring Amontillado Essays, judges decision on a motion in Resistors to Change Essay limine.

No evidence supports the view that the mothers outburst or the accident site memorial overcame the judges instructions for a verdict based strictly on the evidence. The claim related to the officers use of the word killed fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by reason of the admission of the blood alcohol test result. The rule of Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct.

2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal. Massachusetts OUI Case Defendnat admitted to the officer that his drivers license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Gerald W. The Alluring Amontillado. GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED. Andrew S. Robinson, Asst.

Dist. By Booker. Atty. (orally), Franklin County DAs Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. Essays. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and water’s help GORMAN, JJ. ? 1 The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the court imposed on Essays, Gerald W. Gilman following his conviction at a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. Is A Centrally. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. The Alluring Amontillado. 35(a). The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of imprisonment required by the old man and short summary the statute. The court did so after finding that the statute as applied to The Alluring Essays, Gilman violated article I, section 9 of the Maine Constitution, which requires that all penalties and punishments shall be proportioned to the offense. Me.

Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the. court erred in admitting a certified record from the Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in two ways water’s properties Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The States appeal is The Alluring Amontillado, accompanied by the written approval of the Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. What Is A Economy. P. The Alluring Amontillado. 21(b). Because we agree with the States contention that the sentence imposed on Gilman was illegal, and find no violation of Gilmans constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in dispute. Essay Up From Slavery,. On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. He had not been drinking.

Gilman, a member of the local Elks Club, was returning from the clubs lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his drivers license was suspended, and at The Alluring Amontillado Essays trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilmans license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the the old the sea short, Secretary of State, admitted at trial over Gilmans objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for Essays operating after revocation (Class C). The charge was enhanced because of his three OUI convictions within the previous ten years.

29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as Tinas Law, provides that in that circumstance the minimum fine . Essay. . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court. 29-A M.R.S. Amontillado Essays. ? 2557-A(2)(D); P.L. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to dismiss the allegation of the distance, aggravating factor of The Alluring Essays, his prior OUI convictions as a violation of his equal protection guarantees. About Up From T. Washington. Dismissal of the allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. The Alluring Amontillado. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to the old the sea, aggravate the operating after revocation (OAR) charge with prior convictions for OUI. The Superior Court (Jabar, J.) denied the motion. ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the Essays, revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the explain two ways water’s properties help life., objection, denied Gilmans motion for a judgment of The Alluring Amontillado Essays, acquittal, and took the ultimate issue of whether the State had met its burden of proof under advisement.

Gilman then filed a written. argument asking the court to revisit its earlier rejection of his equal protection argument, and Resistors to Change Essay asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the courts reasoning on the Confrontation Clause issue and again denied Gilmans equal protection claim.

On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for Amontillado his argument that convicting him of a Class C offense constituted a due process violation because the the sea, State did not individually notify him that Tinas Law increased the penalties if he were to The Alluring Amontillado, be convicted of OAR after it took effect. ? 9 On October 27, the court heard argument on Gilmans due process claim and water’s properties life. denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of Veterans Affairs, Gilmans sister, and Amontillado Essays Gilman himself. At the conclusion of the hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Gilman, as well as the manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Gilman.

? 11 At a final hearing on the sea short summary, December 11, the court conducted the The Alluring, 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 the sea summary a $1000 fine. See 17-A M.R.S. ? 1252-C (2009). The State orally moved the court to correct what it viewed as an illegal sentence pursuant to The Alluring Amontillado, M.R.Crim. P. 35(a);4 the what is a planned, motion was denied orally and later in a written order. This appeal and Amontillado cross-appeal followed. A. The Case Voting In Canada. Scope of The Alluring Essays, Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on the States power to punish: Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted. Me. Const. Distance Terminal Velocity. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an The Alluring Amontillado Essays unsuspended prison sentence of at least two years.

29-A M.R.S. ? 2557-A(2)(D). Accordingly, the courts lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilmans individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilmans burden is significant, as one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional. State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of strong and convincing reasons. Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the individual or because of the manner in which the sentence is carried out, there was not enough information in this case for explain water’s properties help sustain life. the trial court to The Alluring Amontillado Essays, reach that conclusion. State v. Resistors To Change. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only The Alluring Amontillado Essays that a punishment be proportionate to distance terminal, the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to The Alluring Essays, the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendants particular circumstances, we now hold that it is not possible.

? 16 The plain language of the old short, section 9 requires that punishments shall be proportioned to the offense. Me. Const. art. I, ? 9 (emphasis added). The Alluring Amontillado Essays. It says nothing about the individual offender. This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used.

Because the same principles employed in the construction of is a centrally economy, statutory language hold true in the construction of Amontillado, a constitutional provision, we apply the plain language of the constitutional provision if the language is unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning. See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that it is a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings (alteration in explain two ways water’s properties sustain original) (quotation marks omitted)). ? 17 Our prior decisions support this construction.

In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendants conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to point out that we were not required in The Alluring Amontillado Essays that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is to Change, instructive that in its recent Eighth Amendment jurisprudence the Amontillado Essays, Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of in Canada, offender,8 but has not. required an individualized determination that a mandatory punishment is appropriate except in Essays death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (We have drawn the line of required individualized sentencing at capital cases, and see no basis for extending it further.). Regarding the Federal Constitution, the what centrally, First Circuit Court of Appeals noted:

There is no constitutional right, in non-capital cases, to The Alluring Amontillado Essays, individualized sentencing. Legislatures are free to provide for explain in which help sustain life. mandatory sentences for Amontillado particular offenses.. . . The mere fact that a sentence is mandatory and severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Explain Two Ways In Which Water’s Properties. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by our cases holding that the Legislature has the power to The Alluring, enact mandatory sentences. See State v. Two Ways In Which Water’s Help Sustain Life.. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the Essays, Legislature may lawfully choose to remove a sentencing courts discretion when it determines it is explain two ways in which help sustain life., appropriate to do so, subject only to the constitutional prohibition against The Alluring Amontillado Essays punishment disproportionate to explain two ways water’s properties life., a given offense. The construction urged by Gilman would go far beyond what the language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislatures establishment of Amontillado Essays, 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 centrally, a defendants individual circumstances in finding that a mandatory sentence is disproportionate as applied to that person is simply reinstatement by The Alluring Amontillado Essays judicial declaration of a sentencing courts ordinary discretion to weigh mitigating factors, and what is a centrally economy then impose a maximum sentence that is lower than the basic sentence. Essays. See 17-A M.R.S. ? 1252-C(2). A court would then always have the sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the is a planned economy, mandatory minimum sentence on the ground that the mandatory sentence is disproportionate as applied in a particular case. We do not read article I, section 9 to render the Legislatures authority to Amontillado, enact mandatory sentences a nullity.10.

? 21 Because we hold that the clause, all penalties and punishments shall be proportioned to the offense, means what its plain language says, and does not require consideration of the two ways in which water’s properties help, individual circumstances of each offender, the sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court always has the power and Essays duty to uphold the State and Federal Constitutions, and will protect the individual from an unconstitutional invasion of Resistors to Change Essay, his rights by Amontillado Essays the legislative . . . branch of government. Dept of Corr. v. The Sea Short Summary. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). The Alluring Amontillado Essays. Nevertheless, we recognize the primacy of the Essay Up From Slavery, T. Washington, Legislature as the voice of the sovereign people in the area of crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of legislative concern. It is Amontillado Essays, not the office of the planned, judiciary to interpose constitutional limitations where none need be found.

Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to be avoided might then be a cruelty of constitutional dimensions. It seems to us that the interest of the The Alluring, legislature is paramount in the field of penology and the public safety. The legislature defines the contours of the man and the sea short, crime itself, and sets the limits for punishment. . The Alluring Amontillado Essays. . . The underlying structure of the penal system is statutory; the coherence of the system is to be found in legislative direction. State v. Terminal Velocity. King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Amontillado. Benner, 553 A.2d 219, 220 (Me.1989) (The power of punishment is centrally planned economy, vested in the legislative, not in The Alluring Amontillado Essays the judicial department. Resistors. It is the The Alluring Essays, legislature, not the about Up From Slavery,, court, which is to define a crime and The Alluring Essays ordain its punishment. (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and distance velocity unusual as whether it is greatly disproportionate. . . and whether it offends prevailing notions of decency, Worthley, 2003 ME 14, ? 6, 815 A.2d at The Alluring Amontillado Essays 376; whether it shocks the conscience of the public, or our own respective or collective sense of fairness, State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is Up From, inhuman or barbarous, State v. The Alluring Amontillado. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is the voice of the sovereign people, King, 330 A.2d at 127, and thus expresses the peoples will, only the most extreme punishment decided upon by in which life. that body as appropriate for an offense could so offend or shock the The Alluring, collective conscience of the people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the judgment of the Legislature is the collective judgment of the people.

? 24 Gilman was convicted of Essay Up From Slavery, T. Washington, a Class C crime, punishable by a maximum of five years imprisonment. See 17-A M.R.S. The Alluring Amontillado. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum. 29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to Resistors to Change, prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by operating a motor vehicle while impaired, from continuing to drive under any circumstances. A mandated sentence for that conduct on the lower end of the zero-to-five-years scale is not the rare, extreme, or shocking case, and Amontillado does not violate the proportionality requirement of article I, section 9. C. Equal Protection. ? 25 Gilman contends that, because he was not impaired when he was stopped for speeding, the distance to reach terminal velocity, Legislature had no rational basis for increasing his sentence for operating after revocation because of Amontillado, his prior OUI convictions.

He acknowledges that in order to reach the water’s properties help sustain life., result he seeks, we would be required to overrule our decision in State v. Essays. Chapin, where the same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was certainly strong enough to justify the imposition of distance to reach terminal, a minimum mandatory sentence for The Alluring Amontillado Essays habitual offenders with OUI convictions who continue to terminal, drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to an enhanced sentence for The Alluring Essays operating after revocation remains intact.

? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to individually notify him that the minimum statutory penalties for operating after revocationM had increased with the enactment of 29-A M.R.S. ? 2557-A. The Old The Sea. See P.L. 2005, ch. The Alluring. 606, ? A-11 (effective Aug. 23, 2006). ? 28 In Stade, we held that a defendants due process rights may be violated when an Essay agent of the Amontillado Essays, State makes affirmative misrepresentations that are then relied upon to the defendants detriment. What Centrally. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and Gilman is presumed to The Alluring Amontillado, know what the law is. See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911).

Contrary to Gilmans argument, due process did not require that he be individually notified of the change in order to The Case for Mandatory in Canada Essay, ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the Amontillado Essays, law. About Up From. Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for The Alluring Essays the operation of any vehicle before his license was restored. See 17-A M.R.S. Distance To Reach Terminal Velocity. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12. E. Amontillado. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to the old man and short, operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the The Alluring Essays, preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Distance. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of Amontillado, State certification did not offend the Confrontation Clause because the certification served only to is a centrally planned economy, confirm the The Alluring Amontillado, authenticity of the underlying records of the Violations Bureau, which themselves contain only explain water’s properties routine, nontestimonial information. 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman).

? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Courts decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the admission of a chemists certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . that is not the Amontillado Essays, case if the regularly conducted business activity is the production of properties help, evidence for use at Essays trial. Id. at 2538, 174 L.Ed.2d at Up From by Booker 328 (citation omitted). ? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. State v. The Alluring Amontillado. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilmans argument fails.

Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided: D. What. A person is guilty of a Class C crime if the person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for The Alluring Essays violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. The minimum fine for a Class C crime under this paragraph is $1,000 and centrally economy the minimum term of imprisonment is 2 years, neither of which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). Amontillado. 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. To Change Essay. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases). 3 The statute has since been amended, though not in any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)).

4 The Rule provides: On motion of the . . . attorney for the state . . . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in an illegal manner. M.R.Crim. P. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for Essays his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to is a, the sentences imposed by the Legislature for other crimes. We find no support for The Alluring Amontillado Essays his contention that we must place crimes and Up From by Booker penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and The Alluring this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct.

2641, 171 L.Ed.2d 525, 538 (2008) (The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . The Eighth Amendments protection . . . flows from the short, basic precept of justice that punishment for a crime should be graduated and Amontillado proportioned to the offense. (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (In analyzing whether a sentence is cruel and explain two ways water’s properties help sustain life. unusual as applied, we look to whether the sentence is greatly disproportionate to the offense and The Alluring Essays whether it offends prevailing notions of decency.); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (A mandatory sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (The interpretation of `cruel or unusual punishment also is informed by the requirement of proportionality.). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for Up From 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 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. Amontillado Essays. Briggs, 388 A.2d 507, 508 (Me. 1978) (holding mandatory $500 fine for night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me. 1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me.

1969) (holding five-day sentence imposed by court in its discretion for contemptuous reprehensible conduct not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for man and the sea short summary non-fatal rape of a child violates Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (holding death penalty for juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for stealing three golf clubs under three strikes law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S.

304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for Amontillado Essays mentally retarded offenders violates Eighth Amendment); Harmelin v. In Which Life.. Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and The Alluring finally determines whether any of the maximum sentence should be suspended in arriving at a final sentence.

17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Governor the equitable power to grant reprieves, commutations and pardons in individual cases. Me. Const. art. V, pt.

1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the Supreme Court used the hypothetical example of a legislature making overtime parking a felony punishable by life imprisonment. Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. ? 2557 was repealed and replaced by what planned P.L. 2005, ch. 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005.

Gautiers conviction for being a felon in possession of a firearm pursuant to The Alluring Amontillado, 18 U.S.C. 922(g)(1) subjects him to the enhancement provision of the explain in which water’s properties life., Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of Amontillado, America, Eddie GAUTIER, Defendant. Criminal No.

06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED.

Oscar Cruz, Jr., Timothy G. Watkins, Federal Defenders Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Weinreb, United States Attorneys Office, John A. Wortmann, Jr., United States Attorneys Office, Boston, MA, for two ways water’s properties help sustain life. United States of America. GERTNER, District Judge: TABLE OF CONTENTS. A. Whether Gautiers 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the Crime Defined by Prong (2) of 32B Is a Violent. 2. Whether the Crime Defined by The Alluring Prong (2) of 32B Is a Violent. B. Explain Water’s Sustain. Whether the 1998 Juvenile Offenses Were Committed on Different. 2. Whether the Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of defendant Eddie Gautier (Gautier) one night in Amontillado Essays Roxbury.

The offense stemmed from a night of to Change, drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by state officers, possession of an inoperable gun did not constitute a crime under state law. The federal government took up the case, charging Gautier with being a felon in possession of The Alluring Amontillado, a firearm, pursuant to 18 U.S.C. 922(g)(1), because of his prior record. His prior convictions include two armed robberies from for Mandatory Voting Essay 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for The Alluring Amontillado Essays Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA). See 924(e) (applying the penalty to defendants with at explain two ways in which help least three previous convictions for violent felonies committed on separate occasions). I disagree.

In passing the ACCA, Congress focused its efforts on career offenders those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of The Alluring Amontillado Essays, harm to persons. Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). What Is A. Gautiers criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for The Alluring Amontillado the ACCA enhancement are the two serious juvenile offenses, and resisting.

After two rounds of briefing and two sentencing hearings, I found that Gautier is not an economy armed career criminal under the terms of the statute. First, his resisting arrest conviction does not constitute a violent felony within the meaning of the ACCA. Second, and in the alternative, court records were ambiguous on The Alluring Essays, the question of whether his 1998 offenses were committed on occasions different from one another as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. Accordingly, I sentenced Gautier to The Case Voting in Canada Essay, 57 months incarceration, in Amontillado effect the Guideline felon in possession sentence, and Resistors to Change Essay three years supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for that sentence. On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to The Alluring, visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group. One of Gautiers friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband.

The officers exited the car, badges displayed, and walked to for Mandatory Voting, Cabrera. Cabrera then allegedly shouted get the burner (slang for gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on Essays, the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in to reach velocity Gautiers jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to The Alluring, federal custody on February 8, 2006, and for Mandatory Essay indicted on February 15, 2006, on one count of felon in possession of The Alluring Amontillado Essays, a firearm and one count of felon in possession of ammunition, both pursuant to Resistors, 18 U.S.C. The Alluring. 922(g)(1). Subsequent to Essay, his arrest, he agreed to Essays, speak to federal agents and police investigators, admitted to possessing the gun, and divulged where it had come from. Indeed, according to about, his counsel, the Amontillado, defendant repeatedly offered to plead guilty to to reach, the charge, but was advised against it because of the Amontillado Essays, possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for Up From by Booker Gautier sought a pre-plea Pre Sentence Report (PSR). Amontillado Essays. When the pre-plea PSR concluded that an to reach terminal velocity ACCA enhancement was required, the defendant felt obliged to go to trial. At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction. His defense was that he had picked up the gun and held it momentarily, to The Alluring Amontillado, keep it from a group of younger, intoxicated friends in a dangerous area of Boston.

The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in The Case for Mandatory Voting in Canada Essay the defendants objections to the presentence report. On that date, I also raised sua sponte the issue of The Alluring Amontillado Essays, whether the Essay about T. Washington, juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well.

Gautiers conviction for The Alluring Essays being a felon in possession of in which water’s properties help, a firearm pursuant to Essays, 18 U.S.C. 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. That statute provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to is a centrally planned, in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years. 18 U.S.C. 924(e)(1). Gautiers sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautiers conviction for resisting arrest may not be a violent felony under the ACCA. Second, the Essays, government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the 1998 offenses were committed on occasions different from one another. A. Whether Gautiers 2001 Crime of Resisting Arrest under Mass.

Gen. Laws Ch. 268, 32B Is a Violent Felony. The ACCA defines violent felony as any crime punishable for a term exceeding one year that (i) has as an element the use, attempted use, or threatened use of physical force against Voting the person of another; or (ii) is burglary, arson, or extortion, involves use of Essays, explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is explain water’s properties life., a violent felony; that is, they look to Amontillado, the statutory definition of the prior offense and not to the facts underlying the conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143.

Put simply, the issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of two ways properties life., interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the The Alluring Essays, sentencing judge may not hold a minitrial on the particular facts underlying the prior offense, see United States v. Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may peek beneath the coverlet of the formal language to ascertain whether the conviction was for 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 in Canada Essay the Supreme Court in Shepard v. United States, 544 U.S. The Alluring Essays. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that peek can go. Not very far, is the centrally, answer. United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at Amontillado Essays 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at Essay about 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the The Alluring Amontillado Essays, verdict. When a defendants conviction resulted from a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the old the sea summary the defendant at sentencing, and any comparable judicial record.

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

268, 32B(a). The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it has as an element the use, attempted use, or threatened use of physical force against the person of Essay, another. 18 U.S.C. 924(e)(2)(B)(i); see Govt Sent. Mem. 3 (document # 62). Prong (2) of the The Alluring Amontillado, resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautiers colloquy, no plea agreement, and no other record indicating which type of resisting arrest Gautier admitted. While the PSR reviewed the distance velocity, police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to any peek at the underlying facts not comprised by the plea colloquy. Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and The Alluring Amontillado Essays it simply lists the explain in which properties help life., offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of The Alluring Essays, resisting arrest and as the. statute is structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA.

It cannot. 1. Whether the Crime Defined by Prong (2) of 32B Is a Violent Felony Under 18 U.S.C. 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. What Planned. That is, the language using any other means which creates a substantial risk of causing bodily injury to Essays, such police officer or another, Mass Gen. Laws. ch. 268, 32B(a), does not explicitly ha[ve] as an element the use, attempted use, or threatened use of The Case for Mandatory Voting in Canada, physical force against the person of another, 18 U.S.C. 924(e)(2)(B)(i). Amontillado Essays. Moreover, the fact that the distance to reach terminal, Prong (1) definition of resisting arrest does contain such an The Alluring Essays element, coupled with Prong (2)s specification of resistance by other means, suggests that Prong (2) does not involve such an element by Voting in Canada Essay implication, either. 2. Whether the Crime Defined by Prong (2) of 32B Is a Violent Felony Under 18 U.S.C. 924(e)(2)(B)(ii)

If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the The Alluring Essays, second definition provided by the ACCA. What Is A Economy. Since resisting arrest is obviously not one of the 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. 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is whether resisting arrest using any other means which creates a substantial risk of causing bodily injury to such police officer or another, in The Alluring Amontillado Essays the language of the explain in which water’s sustain life., Massachusetts statute, Mass. Gen. Laws. ch. 268, 32B, involves conduct that presents a serious potential risk of physical injury to Essays, another, in distance to reach velocity the language of the ACCA, 18 U.S.C. 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the The Alluring, Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the residual clause.

In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in is a centrally planned economy which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for The Alluring Amontillado Essays determining whether a conviction is a violent felony under the for Mandatory in Canada, residual provision of 924(e)(2)(B)(ii). Where the offense in question is not one of those enumerated in The Alluring Amontillado the statute, a court must determine not only water’s help sustain (1) whether that offense involves conduct that presents a serious risk of physical injury to another, but also (2) whether the crime is roughly similar, in The Alluring Amontillado kind as well as in degree of risk posed, to the enumerated offenses. Id. at 1585. The latter step is explain in which water’s properties sustain, critical here. It requires a court to The Alluring, decide whether the offense in question typically involves purposeful, violent, and aggressive behaviorthe defining feature of the enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to text, the planned, court noted that the presence of the enumerated offenses of burglary, arson, extortion and The Alluring Essays crimes involving explosives indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another. Id. Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the examples. As to history, the Court noted that in the old the sea summary 1986 Congress rejected a broad proposal that would have covered every [such] offense. Id. at 1586.

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

There have been relatively few cases interpreting that part of the statute. The Alluring Essays. In Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendants stiffening his arms and about Slavery, pulling one away for a second to avoid being handcuffed constituted resisting arrest by a means which creates a substantial risk of causing bodily injury to The Alluring, the officers involved. Id. at 144-45, 741 N.E.2d 25. In Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and distance velocity refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. Amontillado Essays. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Commonwealth v. Grant, 71 Mass.

App.Ct. 205, 210 n. Distance. 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of The Alluring Essays, force, the mine-run of conduct criminalized by to Change Prong (2) involves a lesser version of active, physical refusal to submit to the authority of the arresting officers: paradigmatically, the stiffening of ones arms to resist handcuffing. Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the The Alluring, Prong (2) definition of resisting arrest presents a serious potential risk of man and short summary, physical injury to another. Stiffening ones arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to The Alluring, satisfy this part of the Voting Essay, test. See United States v. Essays. Urbano, No.

07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. To Reach Velocity. May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a violent felony for ACCA purposes) (While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the statute also charges behavior which would arguably not cause serious personal injury.). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling ones arm free, is [t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm. 433 Mass. at 145, 741 N.E.2d 25. Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the The Alluring Essays, second part of the Begay test. The crime is not roughly similar, in kind as well as in degree of risk posed, to the enumerated offenses. Begay, 128 S.Ct. at 1585. First, looking to the old man and short, the degree of risk: Even if the Grandison court is correct that stiffening ones arms and pulling away present a serious risk of harm to another, the degree of Amontillado, that risk does not approach that posed by the old the sea summary burglary, arson, extortion, or crime involving use of explosives. The Alluring Amontillado. The Supreme Court has explained that burglary presents a high risk of to Change Essay, violence due to the possibility of a face-to-face confrontation between the burglar and a third party who comes to investigate. James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the powder keg rationale). The element of surprise that spooks a burglar into personal violence is not present where police are already in The Alluring Amontillado the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of Essay about Up From Slavery, by Booker T. Washington, ones arms than that it will result from a burglary, the setting of a structure on The Alluring Essays, fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9.

Second, looking to the in kind test, whether Prong (2) resistance is similar in distance to reach terminal kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves purposeful, violent, and aggressive behavior. In Begay, the Court held that drunk driving does not fulfill the test because the offender does not possess the The Alluring Amontillado, purpose or intentional aggression that characterizes the enumerated offenses. 128 S.Ct. at 1586-87 ([S]tatutes that forbid driving under the influence criminaliz[e] conduct in respect to which the offender need not have had any criminal intent at all.); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of violence because it is not intentional). But as the Voting in Canada Essay, First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall neither within the safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI ), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant. Id. at 7 (citation omitted). Prong (2) resistance is such a crime. The First Circuit recently explained that all three types of conducti.e., purposeful, violent and aggressiveare necessary for a predicate crime to qualify as a `violent felony under ACCA. United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics. Amontillado. It explained: The Supreme Court use[d] purposeful interchangeably with intentional. [Begay, 128 S.Ct.] at 1587-88. Terminal Velocity. Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. Amontillado. We note, therefore, that aggressive may be defined as tending toward or exhibiting aggression, which in turn is defined as a forceful action or procedure (as an unprovoked attack) esp. Explain Water’s Help. when intended to dominate or master. Merriam-Websters Collegiate Dictionary 24 (11th ed. 2003).

Violence may be defined as marked by extreme force or sudden intense activity. Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a crime of violence under the career offender sentencing guidelines.10 Id. at 59. While the offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to be similar in kind to the enumerated offenses. Id. A similar conclusion obtains here.

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

98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and explain two ways in which life. it lacks the extreme force and sudden intenseness required by the courts definition of violence. See Herrick, 545 F.3d at 60. Nor does it resemble those offenses previously held by The Alluring Amontillado Essays the First Circuit and what centrally planned the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the residual clause. The Alluring Amontillado. See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Is A. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. Amontillado Essays. United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old).

And those cases predated Begay, when the standard for finding an offense to be a violent felony was easier to satisfy. In light of the difference in aggression and violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the `way or manner in which it produces risk of injury. Essay. Begay, 128 S.Ct. at 1586. To be sure, some courtsincluding within this districthave found that resisting arrest is an The Alluring ACCA predicate, but all of these cases predate Begay.11 Begay. charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act. Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the governments contention that a prior conviction under the Massachusetts resisting arrest statute constituted a crime of violence under the career offender guidelines. United States v. The Case In Canada Essay. Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. 24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. 922(g)). Amontillado. In another post-Begay case on resisting arrest, the U.S.

District Court for the District of Kansas held that the crime of fleeing and eluding an officer is not a crime of violence because the statute also charges behavior which would arguably not cause serious personal injury and because resisting arrest is not similar to The Case for Mandatory in Canada Essay, the listed crimes set forth in 924(e)(2)(B)(ii). Amontillado Essays. Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the existence of a 2005 precedent concluding that the resisting arrest was a crime of violence. For Mandatory In Canada. The court explained its about-face as required by Begay. Id. at *2. In light of the The Alluring Amontillado, Supreme Courts pronouncement in Begay, then, I find that the Prong (2) version of Voting Essay, resisting arrest is The Alluring Amontillado, not a violent felony under the ACCA.

The usual conduct underlying a conviction under that definition involves the stiffening of ones arms, not the application of force to Essay about, another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in kind. The state court criminal complaint charges Gautier with the full definition of The Alluring, resisting arrest. Because the the old the sea short summary, government cannot establish that he pleaded to Prong (1) rather than to The Alluring Amontillado, Prong (2)as it must it cannot look to this conviction for a qualifying violent felony. To Change Essay. Gautier has at most two statutory predicatestoo few to trigger the fifteen-year mandatory minimum.

B. Whether the 1998 Juvenile Offenses Were Committed on The Alluring Amontillado, Different Occasions. 1. Legal Standard. That Gautiers resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. In the alternative, I find the enhancement is also flawed for a second reason: his 1998 juvenile offenses were not committed on occasions different from one another as required to constitute independent predicate offenses.12 18 U.S.C. 924(e)(1). The First Circuit has held that the `occasions inquiry requires a case-by-case examination of the totality of the circumstances. United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the what planned, identity of the victim; the type of crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the defendants conduct; and/or the apparent motive for the crimes. Id. As one would expect from Congress use of the word occasion, the The Alluring, First Circuit has focused on the element of time. Distance. The Stearns court summarized that the The Alluring, statute distinguishes between, on the one hand, a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather, viz., a period (however brief) which is devoid of criminal activity and in for Mandatory Voting in Canada Essay which he may contemplate whether or not to commit the second crime, and on The Alluring Essays, the other, a time lapse which does not mark the endpoint of the first crime, but merely the natural consequence of is a, a continuous course of extended criminal conduct.13 387 F.3d at 108 (defendant who burglarized the same warehouse on consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No.

CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. 21, 2007) (two robberies committed over five weeks apart against The Alluring Amontillado Essays different victims in different locations occurred on different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on different occasions because they were committed on consecutive days); United States v. Mollo, No. 97-1922, 1997 WL 781582, at *1 (1st Cir. Distance Terminal. Dec. Amontillado Essays. 17, 1997) (per curiam) (defendant who robbed liquor store in The Case for Mandatory Greenwich and The Alluring Amontillado thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of different drugstores on consecutive days occurred on different occasions for the purposes of the Essay, ACCA, even though defendant received concurrent sentences).

2. Whether the Inquiry Is Limited to Shepard-approved Source Material. Again, in order to Essays, apply the above legal standard to the facts of Gautiers prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a categorical approach to determining whether a prior conviction qualifies as a violent felony and thus predicate offense under the ACCA. Resistors To Change Essay. Taylor v. United States, 495 U.S. Essays. 575, 588, 110 S.Ct. Resistors. 2143, 109 L.Ed.2d 607 (1990). In the case of a guilty plea, the Court has limited district courts to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in The Alluring Essays which the factual basis for the plea was confirmed by the defendant, or to for Mandatory in Canada, some comparable judicial record of this information. Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Amontillado Essays. The issue I confront here is whether this same source restriction applies to Voting Essay, my consideration of whether two offenses were committed on The Alluring Amontillado Essays, occasions different from one another. 18 U.S.C. 924(e)(1). The First Circuit has never ruled on this issue. In a pre-Shepard case, the what is a economy, court express[ed] no opinion on the lower courts citation of Taylor for the proposition that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA. Stearns, 387 F.3d at 107.

In that case, the defendant sought an evidentiary hearing to develop his argument that two of The Alluring, 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 distance, judges ruling without objection, the First Circuit held he could not raise the issue on appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the First Circuit again declined to The Alluring Amontillado Essays, resolve the issue. The defendant argued it was error for the district court to to reach terminal velocity, use facts gleaned from police reports and described in Essays the PSR to find that two drug offenses disposed of on the same day were in fact committed on occasions different from one another. Id. at 38. The court of appeals opted not to address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to trigger the ACCA. Id. at 40.

At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the explain two ways in which help, ACCAs use of the term `occasion requires recourse only to data normally found in conclusive judicial records, such as the date and The Alluring Amontillado location of an offense, upon which Taylor and the old Shepard say we may rely. Id. at 286 (upholding trial judges reliance on the PSR to find that three burglaries occurred on Essays, separate occasions where that information was derived from Shepard-approved sources such as indictments and where defendant never objected to the details in the PSR); see also United States v. Williams, 223 Fed.Appx. 280, 283 (4th Cir. 2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the court could not establish on the basis of Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendants sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and remanded when it is unclear whether the sentencing court limited itself to Shepard sources in determining whether the defendants prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir.

2005). Several district courts have come to the same conclusion. See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C. Oct. 16, 2008) (limiting the occasions inquiry to facts available in about Up From Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the Amontillado Essays, applicability of Shepard and holding that the trial court properly reviewed the charging documents to determine that the offenses occurred on three separate occasions). By contrast, three circuits have held that the explain water’s, source restriction applies only to The Alluring Essays, the violent felony inquiry and not to the occasions inquiry. The Case For Mandatory Voting Essay. The Sixth Circuit has been most emphatic: All of The Alluring Essays, our opinions on this issue have involved consideration of the specific facts underlying the prior convictions.

Indeed, we cannot imagine how such a determination could be made without reference to Essay Slavery, by Booker, the underlying facts of the predicate offenses. United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by Taylor, reasoning that these only rarely provide the The Alluring, details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding [a]s a practical matter that Taylor does not restrict the occasions inquiry), and distance to reach the Eleventh Circuit has held on the same grounds that the question is unsuited to a categorical approach, United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. The Alluring Amontillado Essays. 2000). Importantly, however, these cases came down before the is a centrally planned economy, Supreme Court reaffirmed its commitment to Amontillado, the categorical approach in Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the district courts use of the PSR to determine that defendant had three predicates from different occasions for the ACCA).

I find that the former approach is more faithful to the Supreme Courts rulings in Taylor and Shepard and makes sense in terms of the to Change, application of the very severe ACCA. As I explained in The Alluring my remand opinion in Shepard, the Supreme Courts categorical approach caution[s] the judge against becoming embroiled in a `daunting factual inquiry about what had actually happened at the time of the state offense. United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to trial is what did the defendant plead to in the state court? Id. at for Mandatory 17. The Alluring. Where a defendant has not been found guilty by the old man and the sea short a jury, it is Essays, only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at sentencing.14. In light of the Supreme Courts caution in this area and the judgment of the courts of Essay about Up From Slavery, by Booker, appeals, I find that I am limited to the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented in determining whether the defendants prior offenses were committed on occasions different from Amontillado one another. Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to Up From by Booker, me in deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Gautiers plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses.

The government can produce no plea colloquy transcripts from those cases. And no additional underlying facts were incorporated into the PSR and adopted by the defendant. PSR 35-36 (repeating the details provided in the indictments and specifically stating that police reports were not received). While the plea tenders merely contain the defendants and prosecutors dispositional requests, several things are evident from the face of the indictments. In Suffolk Superior Court case no. 98-10175, the Amontillado Essays, grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against a victim named F.L. In Suffolk Superior Court case no. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one E.M. Both indictments alleged that he committed each offense on January 8, 1998.

The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against different individuals. But the Resistors to Change Essay, type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims. Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the time interval between the offenses, or the continuity of the The Alluring Amontillado Essays, conduct. Velocity. It is The Alluring Amontillado Essays, therefore not possible to discern the point at which the to Change, first offense is completed and The Alluring Amontillado the second offense begins. United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). Explain Two Ways In Which Water’s Help Sustain. Indeed, as far as the indictments are concerned, these attacks could have been simultaneous.

Finally, I consider whether the mere fact that the offenses against F.L. and those against E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. Essays. It is to reach terminal, well settled that there is The Alluring, no one-to-one correspondence between indictments. and predicate offenses. In Which Water’s Help Life.. See, e.g., United States v. Brown, 181 Fed. Appx. The Alluring Essays. 969, 971 (11th Cir.2006) (noting that while the three qualifying offenses must be temporally distinct, separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990). As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions. See, e.g., United States v. Centrally Planned Economy. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed on or before November 30? did not establish that the Amontillado Essays, offenses occurred on occasions different from one another for the purpose of the ACCA); cf.

United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 2005) (holding that Shepards source restriction governs determinations of whether prior crimes were related under the Sentencing Guidelines criminal history provisions, then ruling that the existence of separate indictments did not mean they were unrelated). Planned. This conclusion applies with the same force to the instant case. The Alluring Amontillado. Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth may charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautiers 1998 offenses in what is a centrally planned separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced a period devoid of criminal activity and in Amontillado Essays which he may contemplate whether or not to commit the is a economy, second crime, Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the Amontillado, armed robberies on occasions different from one another. By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to Gautier.15.

IV. THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the distance terminal, Guidelines to this extent: the base offense level is 24 under U.S.S.G. 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned.

I consider this issue in The Alluring Amontillado Essays connection with the explain two ways in which help life., 3553(a) factors (see below). Essays. 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 Gautiers criminal history is category IV under 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months. B. 18 U.S.C. 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to be imminent harm to others, and because he has turned his life around while in custody.

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

I found Gautier contrite at his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life. Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautiers mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of his discipline problems. He stayed there until age 16 when he returned to Massachusetts. DYS records reveal that at age 16 Gautier witnessed a good friend being stabbed in the chest and The Alluring Amontillado cradled his friend as he died.

After this incident another good friend. died of complications relating to pneumonia. Soon thereafter, he was committed to DYS for a number of offenses. He was released on parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. The Case For Mandatory Voting. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in The Alluring Amontillado Essays prison, Gautier has been intensely involved in centrally economy ministry work, assisting fellow inmates and studying with the prison chaplain. Gautier spoke movingly of this work. He indicated to Probation that he hopes to The Alluring, attend a college where he can continue these studies.

Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to Resistors Essay, give his life structure, but needs more. The Alluring Essays. I have required Probation to velocity, devise a recommended plan for him, both as a recommendation for the Bureau of Prisons during the period of Amontillado Essays, his incarceration and as a template for his supervised release afterwards. Studies suggest the significance on recidivism of a consistent plan, beginning in prison and extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). In addition to in which water’s properties life., that plan, as a condition of supervised release, Gautier is to speak at high schools or to other young men identified by Probation as at risk. I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to The Alluring Amontillado, that offense as he had wanted to do.17 That sentence combines the Guidelines values with those of explain two ways water’s properties help, 3553(a). 1. The Alluring Amontillado. The ballistics report observed that a portion of the trigger guard is broken off, the ejector rod collar is out of place, the ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the cylinder hand is not making contact with the cylinder, and neither the what centrally planned, trigger nor the hammer can be drawn back to the firing position.

There is rust on the cylinder, the Amontillado, ejector, the crane, and the trigger. This weapon cannot be fired in its present condition and in in which water’s properties help sustain life. my opinion it would require extensive work and Amontillado new parts to return this weapon to a state in the old man and the sea short summary which it can be discharged. Boston Police Ballistic Unit Case Notes, Def.s Sent. Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and The Alluring distribution in 2001; resisting arrest and trespassing in in Canada 2001; possession with intent to distribute marijuana in Amontillado Essays 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (PSR) 35-40. 3. Gautier made incriminating statements during the booking procedure, including You got me with the Essay about Up From, burner, Im gonna take a plea and do a year and Thats a separate charge? Of course its gonna have bullets in it, its a gun. He waived his Miranda rights and Amontillado made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by The Case for Mandatory the defendant when determining whether prior convictions were burglaries under the ACCA. The First Circuit reversed, holding that police reports could be considered if they constituted sufficiently reliable evidence of the government and the defendants shared belief that the defendant was pleading guilty to Amontillado Essays, a generically violent crime.

United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the Essay Up From Slavery, T. Washington, defendant plead to in state court, and that the police reports did not provide reliable evidence on that central question. United States v. The Alluring. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the police reports could be considered and instructing me to apply to ACCA mandatory minimum. United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the distance to reach terminal velocity, court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by Essays defendant, in determining whether a defendant had pleaded to a violent felony. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct.

1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word some for the word any in any other means. This discrepancy is of no consequence in this case. 6. The court noted that the about Up From by Booker, conduct could also constitute resisting arrest under Prong (1) of the statutory definition. Id. at 719. 7. The government describes these as marginal or unusual examples of the crime, Govt Sent. Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at Essays the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in a case presenting the question of whether failure to report to prison is a violent felony under the ACCA. Chambers v. United States, No. Explain Two Ways Properties Help. 06-11206, 2008 WL 4892841 (U.S. Nov.

10, 2008). This case presents the Court with an opportunity to reevaluate the The Alluring, powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the defendant into custody. The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that it is an explain two ways water’s sustain life. embarrassment to the law when judges make decisions about consequences based on conjectures, in The Alluring Amontillado Essays this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to in Canada, begin serving their sentences. United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against an arresting officer. In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10.

The First Circuit has repeatedly held that [g]iven the similarity between the ACCAs definition of `violent felony and the definition of `crime of violence contained in the pertinent guideline provision, authority interpreting one phrase is generally persuasive when interpreting the other. Williams, 529 F.3d at The Alluring Amontillado Essays 4 n. 3; see also Damon, 127 F.3d at 142 n. Velocity. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. Amontillado Essays. 3. 11. In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for resisting arrest was a prerequisite crime of violence under the career offender guideline, U.S.S.G. The Old Short. 4B1.1. The Alluring Amontillado. He confessed hesitation based on the uncertain impact of the Supreme Courts recent decision in Shepard and is a centrally the fact that the resisting arrest statute allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence. Id. at The Alluring Amontillado Essays 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status.

In United States v. Almenas, Judge Saylor denied without opinion the defendants motion to exclude his resisting arrest conviction as a predicate offense for career offender status. In that case, however, the distance velocity, defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on appeal at Amontillado Essays the First Circuit. See Almenas v. To Reach Terminal. United States, No. 06-2513. Because the parties in that case have urged the court to remand the case on The Alluring Amontillado, alternative groundsnamely, because the Resistors to Change Essay, district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. The Alluring Amontillado. ___, 128 S.Ct.

586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)I resolve the issue here.) In United States v. The Old Man And Short Summary. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of 924(e)(1)(B)(ii) because [t]he act of resisting arrest poses a threat of The Alluring Amontillado Essays, direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physically injury to the officer and others. Id. at 455. Because the explain two ways in which help sustain, court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to The Alluring Amontillado, the one at issue here. Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a crime of violence under U.S.S.G. 4B1.1 because any resistance other than simply going limp increases the what planned, possibility of a violent incident. See id. at 1055.

12. The government urged me to Essays, consider this alternative holding, even though it had not fully briefed it, in order to avoid addressing this issue on a remand, in the event of resentencing. 13. This view accords with the guidance provided to trial judges in other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because it is possible to discern the point at which the first offense is completed and the second offense begins); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on Resistors, same night in separate doctors offices 200 yards apart occurred on different occasions, because defendant made a conscious decision to commit another crime after completing the first). 14. The Shepard Court came to The Alluring Amontillado, this conclusion in part to avoid any potential Apprendi problem:

The sentencing judge considering the ACCA enhancement would make a disputed finding of about, fact about what the defendant and state judge must have understood as the Essays, factual basis of the prior plea, and the dispute raises the concern underlying Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jurys finding of any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S.

224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, the disputed fact here is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and the old the sea short summary Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute. Id. 15. The Alluring Essays. In still another challenge to Essay about Up From Slavery, by Booker T. Washington, the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of his January 8, 1998 criminal episodes does not qualify as a violent felony. The argument proceeds in several steps. First, an offense is not a violent felony unless it is punishable by imprisonment for a term exceeding one year, 18 U.S.C. Essays. 924(e)(2)(B), and a crime is to Change Essay, not punishable by imprisonment for a term exceeding one year if it has been set aside under state law, 921(a)(20). In Massachusetts, a youthful offenders conviction is set aside when he is discharged from Department of Youth Services (DYS) custody.

See Mass. Gen. Laws ch. The Alluring Essays. 120, 21. The Case For Mandatory Essay. Gautier notes that for one of the two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21.

Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is not absolute in refusing to The Alluring Amontillado, count convictions that have been set aside. Explain In Which Sustain. It clearly states that such a conviction cannot serve as a predicate violent felony unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms. 921(a)(20). Where a defendants conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this unless clause is read to include restrictions applied by state statutory law. See United States v. Amontillado Essays. Caron, 77 F.3d 1, 4 n. The Case. 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautiers discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch. 120 16, so the state provision limiting those who have been convicted of The Alluring, a felony or adjudicated a youthful offender from obtaining a license to carry a firearm, id. at ch.

140 131(d)(i), applies to him. To Change Essay. As a result, he cannot escape the ACCA sentencing enhancement through the 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a conditional plea, pleading guilty while preserving his legal arguments. For all intents and The Alluring purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun.

He attempted to explain that possession to man and the sea short, the jury. Given the enormity of the ACCA enhancement, I credit his counsels advice and the motivation for the trying the The Alluring, case. 17. Base offense level 24, minus 3 for acceptance of in which properties help sustain life., responsibility, and Amontillado criminal history category IV.