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Benefits of Model of Leadership Essay, Outsourcing Persuasive Paper Essay Sample. About A Brief! In recent years overseas manufacturing has become a topic of debate. In the of Leadership, age of globalization many Unites States based companies have decided to relocate their manufacturing to other countries. Nathaniel! According to the U.S Census Bureau we have imported over $364,943.90 (in millions) from Model of Leadership, China alone in the year 2010. The controversy has even played a part in the upcoming presidential election. A June 2011 republican debate that aired on mangrove fsa, CNN even asked candidates how they intended to bring manufacturing back to of Leadership Essay the United States. When looking at forms of written communication face value, relocating jobs overseas seems to be “un-American”; yet there have been many myths and Model of Leadership Essay misconceptions behind this controversial issue. Global trade has entered a new stage after World War II.
Countries sell their goods, labor, and mangrove fsa raw materials across the global market. Through the Model Essay, removal of young nathaniel, tariff barriers the United States has become the Model, strongest economic power. Young Nathaniel! The North American Free Trade Agreement (NAFTA) and of Leadership Essay the General Agreement on Tariffs and Trade (GATT) has allowed U.S based companies to there will come start offshoring. “Offshoring is the act in which companies move production to Essay another country, producing the same goods, the same way, but at mangrove fsa lower costs and taxes.” One argument made against moving production to other countries is that it takes away jobs from Americans. However, a survey done by the Bureau of Model of Leadership, Labor Statistics shows this isn’t the jane eyre feminism, case. The survey shows that most layoffs were mostly for domestic reasons; the largest being contract completion which accounted for twenty-five percent of layoffs.
Furthermore the survey illustrates that only Essay, four percent of jobs are lost in the United States as a direct result of Essay about Security: History, outsourcing. It is Model Essay true that some jobs are lost as result of of written, outsourcing. However, most people are unaware that American companies tend to create new jobs specific for overseas workers. Model Of Leadership! These are jobs that companies would deem as too costly if they were to restaurant uk be done domestically and there for Model Essay, never considered. Research shows that many start up companies cannot afford to Social History produce goods domestically and of Leadership Essay therefore move production overseas to gain financial stability. About Social Security: History! Once they gained this stability they begin to expand and create new jobs here in Model of Leadership America. If we put a stop to overseas production, this will consequently result in Essay Social A Brief History a loss of Model, jobs.
People who argue the issue neglect to see what jobs are being created because of communication, overseas production. I work for a company that produces in China as well as other countries. My primary function at the company is of Leadership Essay dealing with customs and mangrove fsa duty charges. If we stopped importing my job would be unnecessary, as would the job of our broker who clears our goods through customs. Model! Yes, we are eliminating factory jobs but we are creating other jobs to take their replace. Young Nathaniel Hawthorne! The argument has been made that “America was built on manufacturing” but as Americans, don’t we pride ourselves on Model Essay, the ability grow with the times? Yes, our country was built on manufacturing because that is all we knew.
The idea of trading with other countries was unheard of. In the mangrove fsa, last decade we’ve experienced inventions like the cell phone and E-mail. Work isn’t a 9 to 5 job anymore; we can do business at Model of Leadership Essay any place at forms of written any time. Essay! The argument of mangrove fsa, America being built on manufacturing has no validity. Model Of Leadership Essay! When Thomas Edison revolutionized the Essay about That Time Of The Year Thou Mayst See, world with the invention of the light bulb people didn’t ridicule him and say “we’ve always read by candle light, so that is what we are going to continue to of Leadership do.” Instead, they adapted to the times and Essay Social Security: A Brief History embraced the change. Now that we have the means to Model of Leadership Essay do business with other countries why limit ourselves, in ray bradbury come rains an age of Model of Leadership, globalization and young a global economy we must embrace the change and seize all new opportunities. People who are opposed to offshoring claim that it is Model of Leadership “un-American” and sister “unpatriotic” to relocate manufacturing overseas. Model Of Leadership! They say that we should be worried about the livelihood and job security of other Americans instead of giving their jobs to overseas workers.
To that argument my answer is, what is more American than capitalism? The biggest reason American based companies decide to Essay Security: A Brief History offshore is because it is cheap. The recent economic decline has been partially blamed on offshore manufacturing. Last December President Obama said that he intends to Model Essay “create and sell products all over the world that are stamped with three simple words: #8216;Made in America.” This seems like a great plan but there is will soft one major flaw to Model of Leadership Essay this strategy. Uk! If American based companies decided to of Leadership Essay produce their goods domestically this means higher costs for speeches, consumers. Because it is so cheap to produce overseas, companies then sell their goods for lower prices. In the year 2008 manufacturing employees in Essay China were paid on about That Year, average $1.36 an Essay, hour (in US dollars), because of this companies are able to sell their goods at lower costs. On the other hand, the jane eyre feminism, federal minimum wage in the United States is 7.25 an hour. Consequently, if the goods cost more to produce then they would have to sell at higher prices to make the of Leadership Essay, same profit. Essay About Social Security: A Brief History! Therefore producing goods overseas would result in a lower cost to the company, which leads to lower cost to the consumer and Model will ultimately stimulate economic growth.
Is this the perfect essay for That Time Year Mayst See, you? Save time and order Benefits of of Leadership, Outsourcing Persuasive Paper. Forms Of Written Communication! essay editing for only $13.9 per page. Model Of Leadership Essay! Top grades and quality guaranteed! Relevant essay suggestions for Benefits of Outsourcing Persuasive Paper. Communication! Outsourcing has been a topic of public debate for Model of Leadership Essay, quite some time. There is of written a lot hype that says outsourcing is beneficial to Model of Leadership the economy. However, the biased agenda of#8230; 1. Outback Restaurant Uk! It is currently a growing market. The expansion of of Leadership, this results in mangrove fsa a larger variety of the Model of Leadership, market. Essay About Social A Brief History! Due to the increase of usage, businesses have more experience, which#8230; ?What are the Pros and Cons of Outsourcing? Outsourcing is Model Essay often undertaken to provide enterprises a competitive advantage by delegating business process to hawthorne external agencies and realizing the Essay, benefits of ray bradbury there will soft rains, low labor, better quality and improved innovation.
While#8230; Outsourcing of Xbox Production by Microsoft and Flextronics. In summary the following case was about Microsoft’s quest to Model of Leadership enter the ray bradbury there will come, video game market with its Xbox gaming console. Of Leadership! Microsoft’s history of hawthorne, having a small hardware business forced Microsoft#8230; The benefits of globalization outweigh its cost. The term #8220;globalization#8221; is defined as #8220;growing economic interdependence of countries worldwide through increasing volume and of Leadership variety of cross-border transactions in goods and services, free international capital flows, and sister more#8230; Persuasive Paper on Pit Bull College.
Over the last 20 years or so, the pit bull has fallen victim to the careless deeds of unethical breeders, irresponsible and even shady owners. This bad combination, along with#8230;
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resume storage 1. Field of the Invention. The invention relates to a method and system for resume storage and Model retrieval from multiple resume warehouses. More specifically, the invention relates to a method and system to allow clients/recruiters to collect and sister wedding organize job applicant information gathered from multiply resume warehouses. 2. Description of the Related Technology.
Resumes are a primary communication medium between employers and job applicants. Employers annually spend billions of dollars to solicit resumes using newspaper advertisements, job fairs, college recruitment seminars, and other methods. In response, job applicants spend billions more to compose, typeset, print, and ship those resumes. Unfortunately, present resume delivery practices are expensive and frustrating for job applicants. Employers and applicants suffer from the inefficiencies of resume collection and handling. Model Of Leadership Essay. The solicitation, receipt, storage, management, search, and will soft retrieval of dozens, hundreds, and in some cases thousands of resumes can be a difficult, unwieldy, and expensive burden on Model, the employer. Physical, paper-based resumes are often stored in desk drawers and filing cabinets. The numerous limitations of present resume practices include consumption of substantial physical space; difficulty in searching through large quantities of paper documents; the near-impossibility of jane feminism correlating applicants whose resumes may vary widely in organization, content, and clarity; and the lack of uniformity in the search process from one practitioner to another. The growing popularity oft he Internet has created a niche in the resume distribution business for Internet resume warehouses (for example, Monster.com, Hotjobs.com, Dice) to of Leadership Essay, improve the method of Essay Social Security: resume solicitation, sorting, delivery, handling, and Model of Leadership management. In U.S.
Pat. No. 5,758,324 issued to Hartman et al. (incorporated by reference), a resume warehouse is described that allows a job applicant to fill out a resume outline form 30 (FIG. Forms Of Written Communication. 3 ). The form 30 has a plurality of fields 31 relevant to employment, using typical information found on a resume is summarized by the applicant. Another resume warehouse is described in Model of Leadership Essay, U.S. Pat. No. 5,978,768 to McGovern et al. (incorporated by reference), which enables an employer to use a computer network, such as the wedding speeches Internet, to advertise available positions and receive resumes electronically from prospective applicants, and enables prospective applicants to use the Internet to find those available positions. Therefore, a continuing need exists for a system which will maximize the scope of Essay a company's advertising efforts while also providing a reasonably secure and efficient manner of eyre feminism forwarding resumes to the company and enabling the company to efficiently screen and Model Essay categorize the resumes received.
Additionally, a continuing need exists to assist a job seeker in locating available positions quickly and effectively. SUMMARY OF THE INVENTION. From the eyre feminism above discussion, it is clear that a very significant need exists for an improved method of resume sorting, delivery, handling, and management. The invention relates to a method and Model system for resume storage and retrieval from multiple resume warehouses. More specifically, the invention relates to a method to allow recruiters to collect and organize job applicant information gathered from multiply resume warehouses. On-line resume warehouses have grown in popularity as a means to cut recruiting cost. Each warehouse has a different method for formatting the jane eyre job applicant information. Essay. Currently, recruiters may print out jane feminism resume of interest or cut and paste them into a word processing application.
Since recruiters may be receive a large amount of Model of Leadership resumes, the about That Thou task of organizing and screening those resumes may be particularly burdensome and thus, a certain resume may be overlooked or mishandled. Furthermore, the Model of Leadership Essay electronic storage requirements may be overwhelming for a business technology resources. The invention provides a method and apparatus for storage and retrieval of resume information from multiple resume warehouses. The invention provides a method and apparatus for searching multiple resume warehouses for resumes and collecting information regarding the resume in a service providers database. The invention provides a method of and apparatus for storage and retrieval of resume information in a manner which preserves the communication appearance, organization, and information content of the original document. One embodiment of the invention provides a method of and apparatus for parsing the Essay resume information and storing the resume information in a database. One embodiment of the invention provides a method of and apparatus for computer-assisted searching of the resume information. One embodiment of the invention provides a method of and apparatus for enabling the automatic and continuous execution oft he searches through resume warehouses, thereby determining when a potentially qualifying applicant has entered their resume. One embodiment of the feminism invention provides a method of and apparatus for coordinating the parsing of of Leadership resume information from multiple resume warehouses. Other features oft he invention will become apparent to those of ordinary skill in the art upon speeches, review of the following detailed description, claims, and drawings.
An object of the present invention is to provide a method and apparatus which enables an individual to search multiple on-line databases for resumes from Model of Leadership prospective candidates, and allows the ray bradbury will come soft individual to Model of Leadership, capture and efficiently organize and screen the capture resumes. BRIEF DESCRIPTION OF THE DRAWINGS. FIG. 1 shows an embodiment of the invention. FIG. 2 shows another embodiment of the invention. FIG. 3 shows another embodiment of the jane eyre invention. FIG. 4 shows another embodiment of the Essay invention. FIG.
5 shows another embodiment of the invention. FIG. 6 shows another embodiment of the invention. FIG. About That Time Of The Thou See. 7A shows another embodiment of the invention. FIG. 7B shows another embodiment of the invention. FIG. 8 shows another embodiment of the invention.
FIG. 9 shows another embodiment of the invention. FIG. 10 shows another embodiment of the invention. DETAILED DESCRIPTION OF THE PREFERRED EMBODIMENT. FIG.
1 shows the Model a prior art on-line resume storage and sister retrieval system. An employer may link to a resume warehouse (for example, Monster.com, Hotjobs.com, Dice) and search the warehouse's database for resumes. Once the employer finds a resume that meets the required qualifications, the employer may print out a copy of the resume or electronically cut and paste the document into a word processor application. The resume may then be filed away or stored on the employer's computer system. This method has many disadvantages, such as the resumes must be manually organized and screened, the resumes require a large portion of the employers' computer resources for storage.
This method is inefficient even after the of Leadership resumes are received by the company. For example, because the resumes must be manually organized and screened, a person in the company's recruitment or human resources department may need to spend a significant amount of time every day performing this task. Due to the large amount of Social resumes that may be received, the task of organizing and screening those resumes may be particularly burdensome and thus, a certain resume may be overlooked or mishandled. As a result, a candidate who is well suited for a position may never be considered. Another disadvantage of the prior on-line resume storage and retrieval systems is a client/recruiter may utilize more than one resume warehouse. Each resume warehouse may have a different method or format for supplying an of Leadership Essay, employer with job applicant information. The different methods or formats may make it difficult for there come soft, an employer to import and Model manage the resume information from different resume warehouse sources. The present invention overcomes this disadvantage by providing a method and sister apparatus that allows employers to import and managing job applicant information from multiple resume warehouse. Another disadvantage is of Leadership prior systems do not provide an there soft, employer the ability to Model Essay, track the efficiency of each resume warehouse at generating potential job candidates. Currently, there is a need to track each resume warehouse to determine the number of resumes supplied to a client, the number of job candidates generated and the number of ray bradbury there will hires generated.
Furthermore, the present invention may notify a client when a resume is already stored in the client's database located at the service provider's site. This will eliminate paying and storing for multiple copies of a resume. In addition, the present invention eliminates false efficiency counts for a resumes warehouses. In an alternative embodiment, the method and apparatus may allow a client to accept resumes: from a headhunter. The resumes submitted by a headhunter may be added to the client's database located at the service provider's site. Model Of Leadership Essay. A client may use the method and apparatus to track the Essay about Year Mayst See productivity a headhunter. The present system may track a head hunter to determine the number of resumes supplied to a client, the number of job candidates generated and the number of hires generated. Of Leadership Essay. If a headhunter attempts to submit a resume to a client's database and communication the resume is Model already stored in the client's database located at the service provider's site, the system may automatically notify the client and/or headhunter that the resume exist and eyre that no commission will be paid for Model, the resume submission. This method reduces or eliminates any confusion regarding commissions paid to the headhunters.
Since headhunters charge a substantial fee for their services, this is an eyre, important advantage of the present invention. An overview of an embodiment of the Essay present invention is illustrated in FIG. 2 . This figure illustrates a relationship between computers 40 used by eyre feminism, job applicants searching for employment positions; an of Leadership Essay, employer, recruiter or company 41 having a computer 42 (it is understood that more than one employer, recruiter or company may use the present invention); a resume database 43 ; and a service provider 50 . The resume database 43 may be maintained by about Social Security: A Brief, a resume warehouse, which typically has contractual relationships with the of Leadership employers, or companies 41 (may be a headhunter or recruiter). Each node in FIG. 2 (job seeker computer 40 , company computers 42 , resume warehouse 43 and service provider 50 ) is provided with suitable communication links and communications software so that they may communicate with each other. Various possible types of communication links may be employed for the communication links between the mangrove fsa nodes of FIG. Model Essay. 2 . For example, the communication link may comprise a hard wired connection, a telephone connection, a satellite RF, or other wireless connection, an Internet connection, a local area network or wide area network connection, a combination of the sister preceding, or any other desired type of of Leadership connection.
Different machines can connect using different types of communication links. The computers may be workstations, desktop computers, laptop computers, mobile computers, PDAs, servers, clients, peers, uniprocessor or multiprocessor machines, embedded systems, and/or other computers. Suitable networks include local area networks, metropolitan area networks, wide area networks, the Internet, or any combination thereof “Internet” as used herein includes variations such as a private Internet, a secure Internet, a value-added network, a virtual private network, a portion oft he Internet such as the World Wide Web, or an intranet. If an Internet connection is used, some security precautions may be taken in an embodiment of the invention. For example, a secure servers or encryption methods may be used. The operations performed by a company computer 42 running computer software according to an embodiment of the present invention will now be described. A diagram of a typical computer on which the mangrove fsa present invention is implemented is shown in FIG. 3 . Computer 10 usually includes keyboard 12 , display device 14 and pointing device 16 . Computer 10 has a program running thereon in accordance with the present invention. Display device 14 can be any of a number of different devices, such as a computer monitor employing a cathode ray tube (CRT) or touch screen. Pointing device 16 as shown in FIG. 3 is Model of Leadership Essay a mouse, although the invention is not so limited.
When a client connects to the service provider's web site, the service provider may display a screen requesting that the client enter his or her name, pseudonym, or the like, and Essay about Time Of The Year Mayst password, which allows the client to interact with or “log-on” to Model of Leadership Essay, the service provider's web site. In an alternative embodiment, the client is not required to log-on. Ray Bradbury Will Come Soft. Once a client has log-on, the service provider may display interactive screens that allow the client to perform desired tasks to Model Essay, administrate or facilitate the hiring process. The service provider 50 may provide the client's machine 41 with a web page allowing the client to about A Brief, select a resume warehouse for searching for job applicants. As shown in FIG. 4 , the of Leadership client may select an icon, as shown which consists of a very thin rectangular grey colored icon with the resume warehouse name used to represent a link. The invention is not limited by there will, the size, shape or type of icon.
The icon shown is for illustrative purposes only. By selecting the Model icon representing a resume warehouse, a client may link to the resume warehouse though the service provider's custom browser/client program. The service provider may provide automatic login features for the resume warehouses that require passwords. Mangrove Fsa. The client may then search for job applicants at the resume warehouse site. In this embodiment, the Essay visual image of the resume warehouse web page may be persevered within the service provider's custom browser. The present invention eliminates any problems regarding the display of the resume warehouse's advertisement banners. It is noted that the use of the term “selected” or its derivatives in this application refers to Essay about, selection by Model of Leadership, manipulation of sister speeches a mouse, depression of the Model of Leadership “enter” key on a computer keyboard, activation of a touch screen, or in come soft, any manner as would readily be appreciated by of Leadership Essay, one skilled in the art. In an alternative embodiment, the service provider may provide a client with ability to search multiple resume warehouses with one search. A list of of written communication potential job candidates may be presented to Model of Leadership, the client.
The list of job candidates may be hyperlink to the resume warehouse, which may store the resume information. Aclient may select a job applicant and the resume warehouse's web page, which houses the resume, will open up within the service providers web page (custom browser). Eyre Feminism. This eliminates any problems regarding the display of the resume warehouse's advertisement banners. Model Of Leadership. Another advantage of this embodiment, a client may quickly and efficiently search multiple resume warehouses. A client may preform a search by known methods. The search may be preformed when a client submits a search form.
The search form may include fields corresponding the job requirements. Mangrove Fsa. After filling in a search form, the client sends the search form to the service provider/resume warehouse (e.g., by pressing a “submit”, “send”, or “search” button 142 on Model, the form in a HTML application). This results in the client's machine providing a search request to the service provider/resume warehouse and eyre initiating a search oft he database. Essay. The computer running the resume screening software may then be controlled to search those resumes for various attributes, such as college degrees, prior experience, special qualifications, and the like. The computer may then provide a list oft he most qualified candidates out mangrove fsa of the entire collection of resumes. Furthermore, the client may enter information indicating that the “search agent” is to Essay, be a constant search agent which monitors post for new job applicants on, for example, a daily basis. This computerized screening and sorting method allows human resource personnel to devote more time to about Security: A Brief, other tasks.
The system is capable of storing the client's search requests, and periodically later repeating the search (update searching). If the client desires the ability to store search requests and perform update searches, he or she will be required by the system to obtain a user name and/or password, so the Essay client may be identified by the system in a subsequent connection session. The system is also capable of suspending execution of forms a search request upon receiving a suspend request from the client, and of resuming the Model search at a later time upon receiving a resume request from the client. For example, the client may view the summary information for mangrove fsa, a certain number of of Leadership “hits” (entries that satisfy the search parameters) and wish to take a break before more closely studying the results, or before looking at jane eyre feminism, less relevant matches. Again, if the client desires the ability to suspend and later resume search requests, he or she will be required by the system to obtain a user name and/or password, so the client may be identified by the system in a subsequent connection session. Upon completing the of Leadership Essay search, client may be provided with an amount of the summary information for entries that satisfy the search parameters (search query). Preferably, contact information (e.g., name, address, phone number, e-mail, fax number, etc.) of qualifying applicants is suppressed at this stage. In one embodiment, the information presented to the employer for each entry that satisfies the search parameters is “summarized” information, for easy and quick review in a standardized, compact, format. Relevancy ranking may be performed in a preferred embodiment. The relevancy ranking identifies entries in the database that, while perhaps not perfectly matching the criteria specified in come, the search form, are substantially similar enough to be of potential interest to the employer.
The list of most qualified candidates may linked to a detail description of the applicant's qualifications as shown in FIG. 5 or an image of the resume may be displayed to the client. If the client wishes to Model of Leadership, obtain a copy of the resume, the client may click on the capture button shown in FIGS. 5 and 6 . The capture button initiates an import application, which parses the sister speeches resume data from the resume warehouse and collects the data for storage in the service provider's database. Once the data is parsed into the template, the client may chose to accept or decline the applicant information. In an embodiment of the invention, the client my edit the templet before accepting the information. An example of the of Leadership service provider's templet for parsed job applicant information is shown in about Of The Thou See, FIGS. 7A 7B . Each resume warehouse may have a different method for formatting the job applicant information. Model Of Leadership. The present invention may be set up to parse the job applicant information from multiple resume warehouses. Sister Wedding Speeches. This method eliminates the client's need to Model of Leadership Essay, have different storage methods for each resume warehouse. The data from all sources may be maintained in the service provider's database without any extra effort from the client.
In an alternative embodiment, an there will, image of the resume may be captured and stored in the database. When importing the Essay capture resume, the computer software may have the ability to determine the source resume warehouse and ray bradbury there soft rains a parsing application for the source resume warehouse may be used. By tracking the source resume warehouse, the service may provide the client with the ability to determine the Model of Leadership resume warehouse's productivity. Once a resume has been selected, the client may manipulate the resume as desired. For instance, the client may rate or score the resume to indicate whether the applicant is suitable for the position. The score may appear next to the resume. After a resume is jane eyre feminism captured, the job applicant information collected by parsing may be used to populate a database, which may be used to provide an automatic recruiting system. The job applicant information stored in the database may be used to generate form letters. The service provider may be configured to send a message to a prospective job applicant, such as a generate form letter.
The message may include for example, the names of the positions and their corresponding companies. The message may be sent via e-mail, facsimile or regular mail. In an alternative embodiment, the service provider may be configured to automatically send an Model of Leadership, e-mail to the job seeker informing the job seeker that the jane feminism resume has been received. The client may initiate a form letter to be send to a candidate by selecting the form from the Model of Leadership Essay service provider's web site. The service provider may provide the job applicant information to complete the form letter. Sister Speeches. For example, a letter, such as a form rejection letter may be imported from a database into the e-mail message prior to transmission. In addition, a selected resume may be e-mailed to anyone with an Internet e-mail address. In another embodiment, the client may determine where the application may be filed (stored). Of Leadership Essay. This may be decided when the job applicant information is sister speeches capture. The client may store the captured resume in relation to the open positions for which the job applicants are applying.
For example, if the job applicant is applying for a position as a cold fusion developer, the resume may be stored in a file which relates to that cold fusion developer position. As shown in FIG.8 , the folder for the cold fusion developer position contains six resumes. The client may view the resumes received for the cold fusion developer position by selecting the “6” hyperlink under the “# of resumes”. The resumes may listed by name of applicant or by a relevancy rank. The client may view a summary of the job applicant's qualifications or an Model of Leadership Essay, image of the resume. The foldering process may be alter or change at any time by the client. Restrictions or user rights may used to provide control and security for the database. Furthermore, the client may manually delete a selected resume. Alternatively, the client may configure the service provider to automatically delete a resume after a selected period of time from receipt (e.g., 180 days), or to save the resume indefinitely if desired.
In an embodiment of the present invention, the client may create a new job position or manage an existing position. The service provider may display an interactive screen for about History, the client to control and perform certain operations which are described below. The service provider may allow a client to open a new position, edit the position, deactivate or delete a position. In an embodiment oft he present invention, the service provider may limit the options/features provided to a client based on the agreement between the service provider and of Leadership Essay the client using the system. For example, if the company has not enable certain features of the resume tracking system, the service provider may not activated the feature which would instruct the program to allow the client to use that feature. Also, if the company has only paid the service provider to use the system and method to That Time Year Mayst, track a certain number of job openings or for certain amount of time, the service provider may prevent the Model of Leadership client from using the service if the amount has been exceeded. If the client indicates that a job position is to be added for tracking, the service provider may display a screen for the client to enter information pertaining to the position for mangrove fsa, which an applicant is being sought. For example, the screen display may include a form in which the client may enter the title of the position, the category of the position, a brief description of the position, and Model of Leadership Essay a detailed description of the speeches position. This information may be used to inform people who review the Essay resumes in the client's company of the qualifications requirements. When the client enters the information, the service provider may store that information at a location in memory pertaining to Essay about That, that position which can be accessed with reference to that position. That information can also be stored with respect to the particular client within the company.
Once the client has submitted the information the display screen will display a message indicating, for example, that the information has been received and stored. The information may be manipulate at anytime by a client with the proper authority. When the Essay client indicates that the editing has been completed a message indicating that the information has been received and stored may be displayed. The service provider may allow the client to about That Of The Year Mayst See, track the Essay status of job openings. For example, the eyre feminism service provider may provide the client with statistics regarding the client's open job positions.
For example, the number of captured resumes for each position may be provide to the client and clicking the hyperlink the client may view the of Leadership resumes collected for the position.
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dessay height Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and Model of Leadership, defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of Essay about Time Of The Mayst insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations – Here is the Model Law.
Massachusetts DUI Laws. It is A Brief, illegal to drive or operate a motor vehicle in Massachusetts, if you are under the influence of alcohol or drugs. According to Massachusetts DUI law, a person is of Leadership Essay, considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater. If a driver is there come rains, under the age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at or above the legal limit will be arrested and booked on Model DUI charges. At this time, it’s best to contact a seasoned Boston DUI lawyer who has the experience and skill to mangrove fsa defend you in court. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court. There are defenses to a Massachusetts DUI and Model, Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to perform them at of written night, on the shoulder of the road, in Model the cold, in the glaring squad car headlights.
We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program. The case is Essay about Time Of The Thou Mayst See, dismissed after mandatory alcohol education classes and one year of probation and, and Model of Leadership, you can get a hardship driver’s license within four days of the plea hearing. A second DUI is will come, harsher, and often requires going to Model trial. A second offense is mangrove fsa, punished by a minimum of two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for Essay six months. A third DUI is speeches, 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 Model of Leadership Essay Correction. •License suspended for 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. It is similar to, but not technically a guilty plea. A Brief. (More info on a CWOF.) •Pay a number of fines and court fees (over $2500 in Model of Leadership 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 90 days (not including any penalty for breath test refusal) •License suspension is 210 days for drivers under age 21. •You are eligible for a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties:
The minimum penalty (above) is sister wedding speeches, almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is Model of Leadership Essay, 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 come rains same penalty, saving you fines and Model of Leadership, 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 sister 18 months. Of Leadership Essay. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at least 3 years total.) •As of January 1, 2006 – Interlock device installed in your car at your own expense for 2 years, when you become eligible for hardship or license reinstatement.
Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for by the 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 eyre feminism 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 detail on the implications of a 2nd offense drunk driving defense.
I can almost always negotiate for the Alternative Disposition above for Essay any second offense OUI conviction, but it is still a tough punishment to accept for many people. Mangrove Fsa. Given that there isn’t that much risk of Model of Leadership Essay a worse outcome if you choose to fight the case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the prior is in another state, or decades old, you will be forced to get an interlock device installed in your car as a condition of license reinstatement. The Registry is harsh on this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is a good reason to strongly consider fighting the case. Massachusetts OUI/DWI Law – Third Offense Penalty(3rd) Penalty. •Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in a prison treatment program. •License suspended for 8 years, work/education hardship considered in 2 years; general hardship in 4 years. •Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on eyre feminism 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 Model of Leadership 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 table, which only happens if the court can’t provide sufficient proof of the sister speeches prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is a Felony Offense) •License suspended for 10 years, work/education hardship considered in 5 years; general hardship in 8 years. •Commonwealth may seize, keep, and/or sell your vehicle.
The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Model. Even a small chance of winning the ray bradbury there will soft case is worth the risk, since it is probably your only Model of Leadership chance to there come rains avoid jail time. You need to consider fighting your case at trial in almost all cases. MASSACHUSETTS OUI/DUI LAWS – FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for details.
OUI With Serious Bodily Injury – Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in Model of Leadership Essay State Prison depending on how your DUI or OUI violation is charged and prosecuted. Here is a copy of the Massachusetts DUI and of written communication, OUI Laws. Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon Model Essay any way or in any place to eyre feminism which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by Model Essay weight, of alcohol in their blood of about Time Thou Mayst See eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by Model Essay imprisonment for not more than two and about Social, one-half years, or both such fine and imprisonment.
There shall be an of Leadership Essay, assessment of $250 against a person who is convicted of, is placed on probation for, or is granted a continuance without a finding for wedding speeches or otherwise pleads guilty to Model Essay or admits to sister a finding of sufficient facts of operating a motor vehicle while under the Model Essay influence of come soft intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the of Leadership assessment shall be credited to the General Fund. Forms Of Written Communication. The assessment shall not be subject to reduction or waiver by of Leadership Essay the court for any reason. There shall be an assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to 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 jane eyre feminism, assessed is Essay, sentenced to a correctional facility and the assessment has not been paid, the court shall note the assessment on the mittimus. The monies collected pursuant to ray bradbury will come soft rains the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the monies, from time to time, into the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to said section 66 of said chapter 10, by Model Essay 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 forms communication the court pursuant to this chapter or any other chapter. Essay. The administrative office of the trial court shall file a report detailing the amount of funds imposed and sister wedding, collected pursuant to this section to the house and senate committees on ways and means and to the victim and of Leadership, 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 mangrove fsa date of the commission of the offense for which he has been convicted, the Model of Leadership Essay defendant shall be punished by forms a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served thirty days of such sentence; provided, further, that the Model Essay commissioner of Essay Social History correction may, on Essay the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an Essay Time Of The Year Thou See, officer of Essay such institution for Essay Time Thou Mayst See the following purposes only: to Model Essay attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to Essay about That Time Of The Mayst See support the recovery of an offender who has completed an of Leadership, alcohol or controlled substance education, treatment or rehabilitation program operated by of written the department of correction; and provided, further, that the of Leadership 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 ray bradbury will soft rains the incarceration and rehabilitation of of Leadership Essay 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 imprisonment for not less than one hundred and Essay Social Security: History, eighty days nor more than two and one-half years or by a fine of of Leadership 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 eyre 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 his sentence for good conduct until he shall have served one hundred and fifty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of 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 Model of Leadership 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 sister speeches 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 Model of Leadership, 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 Essay about Social a correctional facility specifically designated by Model of Leadership Essay the department of correction for That Time Year Mayst the incarceration and rehabilitation of drinking drivers. If the of Leadership Essay defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the speeches commonwealth or any other jurisdiction because of Model of Leadership Essay a like offense three times preceding the date of the commission of the offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by wedding speeches imprisonment for of Leadership Essay 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 feminism the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon Model 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 eyre good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on Model of Leadership the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by mangrove fsa the department of Essay correction; and provided, further, that the defendant may serve all or part of such twelve months sentence to the extent that resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the 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 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 Essay Social Security: A Brief 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 Model Essay 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 twenty-four months, nor suspended, nor shall any such person be eligible for forms of written communication probation, parole, or furlough or receive any deduction from his sentence for Essay good conduct until he shall have served twenty-four months of such sentence; provided, further, that the commissioner of ray bradbury come soft rains 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 Model of Leadership Essay attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at about Social Security: History 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 Model of Leadership the department of correction; and provided, further, that the defendant may serve all or part of such twenty-four months sentence to the extent that resources are available in eyre a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. A prosecution commenced under the provisions of this subparagraph shall not be placed on file or continued without a finding except for dispositions under section twenty-four D. Model Of Leadership. 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 forms of written communication prosecution on such complaint be transferred to another division of the Essay district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendant’s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of soft rains a like offense; provided, however, that the provisions of this paragraph shall not justify the postponement of Model Essay any such trial or of the acceptance of any such plea for more than five working days after the date of the defendant’s arraignment. The commissioner of probation shall give priority to Essay Social A Brief History requests for Model of Leadership Essay such records. At any time before the jane commencement of of Leadership a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the forms of written prosecutor may apply for the issuance of of Leadership a new complaint pursuant to mangrove fsa section thirty-five A of chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations. If such application is made, upon motion of the Model of Leadership 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 prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of chapter two hundred and mangrove fsa, eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint. (2) Except as provided in subparagraph (4) the provisions of section eighty-seven of chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the provisions of section six A of chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on Model 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 mangrove fsa provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to of Leadership or is mangrove fsa, found guilty of a violation of subparagraph (1) and Model of Leadership Essay, who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the sister speeches 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 defendant’s driving record, the criminal record of the defendant, if any, and Model of Leadership Essay, such information as may be available as to the defendant’s use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from ray bradbury there soft, such treatment and that the safety of the of Leadership Essay public would not be endangered, with the defendant’s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the Essay That Year Thou Mayst defendant be confined for Essay no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by said division in consultation with the department of correction and with the approval of the secretary of health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and sister speeches, 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 of Leadership Essay, completed.
Failure of the about Of The defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and Model of Leadership, proceedings under the provisions of History section three of of Leadership chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and will, 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 the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the Model administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in mangrove fsa the custody of an officer of such institution for the following purposes only: to attend the of Leadership funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in A Brief History employment pursuant to a work release program. If such defendant fails to attend or complete the Essay residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for not less than thirty days as provided in sister wedding subparagraph (1) for Model such a defendant. The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and provided, further, that such person files with the court, an mangrove fsa, affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of Model such fee would cause a grave and serious hardship to wedding speeches such individual or to Model of Leadership the family of sister wedding such individual, and that the of Leadership court enters a written finding thereof. In lieu of waiver of the entire amount of said fee, the court may direct such individual to make partial or installment payments of the cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted unless such person has not been convicted of That Time Of The Year or assigned to Model Essay an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, and said person qualifies for about Of The Year disposition under section twenty-four D and Essay, 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 Essay That Time Thou See operate. Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar. The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by Model reason of a violation of paragraph (a) shall be controlled by about A Brief History the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to Model operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the sister date of the Model commission of the Social Security: A Brief History offense for which he has been convicted, the Model Essay registrar shall not restore the license or reinstate the right to operate to come soft such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the date of conviction; provided, however, that such person may, after the expiration of three months from the date of Model of Leadership Essay conviction, apply for and shall be granted a hearing before the registrar for about Of The Year Thou See the purpose of requesting the issuance of Model a new license for employment or educational purposes, which license shall be effective for sister not more than an identical twelve hour period every day on the grounds of hardship and a showing by Model of Leadership Essay the person that the causes of the ray bradbury will soft present and past violations have been dealt with or brought under control, and Model Essay, 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 Essay A Brief History six months from the Essay date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and there come soft, past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the 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 Model Essay defendant, until two years after the date of the forms of written communication conviction; provided, however, that such person may, after the expiration of 1 year from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of Essay a new license for Essay about Year Thou employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day on of Leadership Essay the grounds of hardship and a showing by the person that the causes of the present and forms, past violations have been dealt with or brought under control and that such person shall have successfully completed the residential treatment program in subparagraph (4) of paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on of Leadership a limited basis on the grounds of wedding 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 of Leadership, 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 sister wedding 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 Model the duration of the hardship license.
(3) Where the mangrove fsa license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for which he has been convicted or where the Model of Leadership license or right to operate has been revoked pursuant to section twenty-three due to forms communication a violation of of Leadership Essay said section due to come rains 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 Model Essay such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of speeches requesting the issuance of a new license for Model of Leadership employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and Essay Time Of The See, necessary; and provided, further, that such person may, after the Model Essay expiration of four years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of jane eyre feminism a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for of Leadership Essay the duration of the hardship license. (31/2) Where the license or the right to operate of Essay about Thou Mayst See 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 Model 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 conviction, apply for and shall be granted a hearing before the registrar for the purpose of wedding requesting the issuance of a new license for Essay employment or education purposes which license shall be effective for there will an identical twelve hour period every day on the grounds of hardship and Model of Leadership, a showing by the person that the causes of the Social A Brief present and past violations have been dealt with or brought under control and the registrar may, in Model of Leadership his discretion, issue such license under such terms and conditions as he deems appropriate and about That Time Of The Year Thou Mayst See, necessary; and provided, further, that such person may, after the expiration of eight years from the Model date of conviction, apply for and shall be granted a hearing before the there will rains registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under the terms and conditions as he deems appropriate and necessary. A mandatory restriction on Model of Leadership Essay a hardship license granted by the registrar under this subparagraph shall be that such person have an ignition interlock device installed on ray bradbury there will 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 or assigned to of Leadership an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the commission of the Essay History offense for which such person has been convicted, such person’s license or right to operate a motor vehicle shall be revoked for the life of of Leadership such person, and such person shall not be granted a hearing before the sister wedding speeches registrar for Model Essay the purpose of requesting the issuance of a new license on Social History a limited basis on the grounds of hardship; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in accordance with the provisions of Model of Leadership chapter thirty A, from any order of the registrar of motor vehicles under the provisions of this section. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant’s biographical and informational data from records of the mangrove fsa department of of Leadership Essay probation, any jail or house of 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 a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and Essay Of The Year Thou Mayst, admissible, after the commonwealth has established the defendant’s guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendant’s commission of Model of Leadership Essay 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 sister wedding speeches have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of a prosecution upon appeal or otherwise after such a conviction. Where there has been more than one conviction in the same prosecution, the Model of Leadership date of the first conviction shall be deemed to be the date of sister speeches conviction under paragraph (c) hereof. (e) In any prosecution for of Leadership Essay a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant’s blood at the time of the alleged offense, as shown by forms communication chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to of Leadership 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 will rains or at the direction of a police officer, it was made with the consent of the of Leadership Essay defendant, the results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at Essay Security: A Brief History his request and at his expense, to Model of Leadership Essay have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to communication consent to of Leadership such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in feminism 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 Model of Leadership Essay any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is sister wedding, under the age of twenty-one and such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant’s license or permit and take all other actions directed therein, if such evidence is of Leadership Essay, that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of communication alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon Model of Leadership Essay 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 public has access as invitees or licensees, shall be deemed to have consented to wedding submit to a chemical test or analysis of his breath or blood in the event that he is arrested for Model Essay operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of ray bradbury there come rains anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the Model Essay influence of intoxicating liquor. Ray Bradbury There Come Rains. If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at Model of Leadership Essay least 180 days and up to jane eyre feminism 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 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of Model of Leadership a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the Essay about Thou Mayst influence of intoxicating liquor in violation of of Leadership 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 mangrove fsa a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for Model of Leadership Essay a period of 5 years for such refusal; and provided, further, that a person previously convicted of eyre 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 submit to any such test or analysis after having been convicted of a violation of section 24L, the restistrar shall suspend his license or right to operate for Model of Leadership 10 years.
If a person refuses to submit to any such test or analysis after having been convicted of about a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in of Leadership violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on forms communication behalf of the registrar, take custody of such person’s 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 suspension in a format approved by Essay the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to forms of written be impounded for a period of 12 hours after the operator’s refusal, with the costs for Model of Leadership the towing, storage and maintenance of the vehicle to forms be borne by of Leadership the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Jane Eyre. Each report shall be made in Model of Leadership a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made. Each report shall set forth the grounds for mangrove fsa the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to submit to a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the defendant. Each report shall identify the Model police officer who requested the chemical test or analysis and the other person witnessing the refusal. Wedding. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to operate which has been confiscated pursuant to this subparagraph shall be forwarded to 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 Model of Leadership Essay receipt of the notification of jane suspension from the police officer. Model Essay. A suspension for a refusal of either a chemical test or analysis of jane feminism breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and of Leadership Essay, as to each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in mangrove fsa the absence of of Leadership any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of mangrove fsa said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a person’s blood alcohol percentage is not less than eight one-hundredths or the Model of Leadership person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the forms communication following: (i) immediately and on behalf of the registrar take custody of such person’s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the registrar, a written notification of suspension, in a format approved by of Leadership 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 officer’s belief that the mangrove fsa person arrested has been operating a motor vehicle on Essay any way or place while under the influence of sister speeches intoxicating liquor and that the person’s blood alcohol percentage was not less than .08 or that the person was under 21 years of Model of Leadership age at mangrove fsa the time of the arrest and whose blood alcohol percentage was not less than .02. Of Leadership. The report shall indicate that the forms communication person was administered a test or analysis, that the operator administering the Model of Leadership Essay test or analysis was trained and certified in the administration of the test or analysis, that the sister wedding speeches test was performed in accordance with the Model of Leadership Essay regulations and standards promulgated by ray bradbury will come rains 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. Each report shall be sent forthwith to the registrar along with a copy of the Model 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 mangrove fsa intent to suspend from a police officer. The license to operate a motor vehicle shall remain suspended until the disposition of the of Leadership Essay offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in jane eyre the defendant’s blood is two one-hundredths or greater and upon the failure of any police officer pursuant to Model this subparagraph, to suspend or take custody of the driver’s license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of jane feminism paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the of Leadership Essay registrar shall administratively suspend the eyre defendant’s license or right to Model of Leadership operate a motor vehicle upon sister speeches receipt of a report from the police officer who administered such chemical test or analysis of the defendant’s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by the registrar and shall be sworn to under the penalties of perjury by such police officer. Each such report shall set forth the grounds for Essay the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at 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 sister wedding speeches test or analysis was trained and certified in the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by Model the police chief as defined in section one of chapter ninety C, or by jane eyre feminism the person authorized by him, and shall be sent to the registrar along with the of Leadership confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant’s blood was administered.
The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the about Security: A Brief police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the Model of Leadership influence of intoxicating liquor upon any way or in any place to which members of the jane eyre feminism 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 (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to Essay operate. The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. The filing of forms a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for Essay judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof.
Review by the court shall be on the record established at the hearing before the registrar. Mangrove Fsa. If the Model Essay 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 registrar’s determination. [ Second paragraph of forms of written paragraph (g) of subdivision (1) effective until November 4, 2010. For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of Model of Leadership Essay his breath may within ten days of such suspension request a hearing and upon jane feminism such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the individual is under the Model of Leadership age of twenty-one and there are no pending charges, in the district court having jurisdiction where the feminism 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 Model weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the age of jane 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 Model of Leadership such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and shall direct the prosecuting officer to jane eyre feminism forthwith notify the criminal history systems board and the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by of Leadership Essay 2010, 256, Sec. Soft. 63 effective November 4, 2010. Model Of Leadership. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon sister such request shall be entitled to a hearing before the court in Essay which the underlying charges are pending or if the individual is under the age of twenty-one and communication, 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 of Leadership Essay percentage, by weight, of alcohol in such person’s blood was less than eight one-hundredths or, relative to such person under the age of sister wedding 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 Model such person under the mangrove fsa age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of such restoration. (h) Any person convicted of a violation of of Leadership Essay 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 Social Security: glue, may, as part of the disposition in the case, be ordered to of Leadership participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. Sister Wedding. The court shall set such financial and other terms for the participation of the Essay defendant as it deems appropriate. [ First paragraph of eyre paragraph (a) of subdivision (2) effective until September 30, 2010. Of Leadership. 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 ray bradbury come soft 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 Model of Leadership Essay making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for Essay about such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, shall be punished by of Leadership Essay a fine of mangrove fsa not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for Model of Leadership a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by eyre a fine of not more than one thousand dollars, or by of Leadership both such fine and imprisonment; and whoever is of written, 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 Model of Leadership both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of forms of written communication any provision of this paragraph if in the judgment of the court or justice receiving the Model of Leadership Essay complaint there is Essay about Social A Brief History, reason to believe that the defendant will appear upon a summons.
[ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to which the public has a right of of Leadership access, or any place to which members of the ray bradbury there 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 of Leadership, the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to jane feminism be used by of Leadership Essay any person, or whoever makes false statements in an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by jane feminism operating said motor vehicle negligently so that the Model of Leadership lives or safety of the public might be endangered, shall be punished by Essay about Of The See a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by Model of Leadership Essay a fine of mangrove fsa not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for Model of Leadership Essay not less than thirty days nor more than two and one half years, or by a fine of about Social Security: A Brief not more than one thousand dollars, or by of Leadership 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 about A Brief History 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 Model Essay not less than six months nor more than two and one half years in Essay about That Thou See a house of correction or for Model Essay not less than two and one half years nor more than five years in the state prison or by Essay about Time Of The Thou 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 Model Essay court or justice receiving the mangrove fsa complaint there is reason to believe that the defendant will appear upon a summons. There shall be an assessment of $250 against a person who, by a court of the commonwealth, is convicted of, is Model, placed on feminism probation for or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the Model public might be endangered under this section, but $150 of the eyre $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 Model, the remaining amount of the jane eyre feminism assessment shall be credited to Model of Leadership the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason.
(a1/2) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right of access, or upon any way or in any place to which members of the wedding public shall have access as invitees or licensees, and Model Essay, without stopping and about Security: A Brief History, 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 of Leadership Essay the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon about A Brief 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 shall have access as invitees or licensees and Model of Leadership Essay, without stopping and about Time Of The Thou Mayst See, making known his name, residence and the registration number of his motor vehicle, goes away to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in the death of a person, be punished by imprisonment in the state prison for not less than two and 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 Model Essay 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. Essay About Security:. 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 Essay probation, parole, or furlough or receive any deduction from his sentence until such person has served at mangrove fsa least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to engage in Essay employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on file. (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of sister wedding speeches this section shall be reported forthwith by the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to operate. If it appears by the records of the 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 Model license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the defendant. In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the right to jane operate to a person convicted in any court for a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of Model of Leadership a violation of subparagraph (1) of paragraph (a1/2) until one year after the date of revocation following his conviction if for a first offense, or until two years after the date of about Time Of The Year Mayst revocation following any subsequent conviction; (ii) any person convicted of Model Essay 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 Essay Social Security: History a first offense or until three years after the date of Model revocation following any subsequent conviction; and forms of written communication, (iv) any person convicted of Model any other provision of paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of three years.
Notwithstanding the forms of written forgoing, a person holding a junior operator’s license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the Essay date of his original conviction for a first offense or 1 year after the date of revocation following a subsequent conviction within a period of 3 years. The registrar, after investigation, may at Essay That Time Thou any time rescind the revocation of a license or right to operate revoked because of a conviction of operating a motor vehicle upon any way or in any place to which the public has a right of of Leadership Essay access or any place to which members of the public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of except by trial, judgment and sentence according to the regular course of wedding speeches criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and Model, that the interests of justice require the allowance of the motion, the motion shall be allowed and the certificate shall be filed in the case. A copy of the motion and certificate shall be sent by the court or magistrate forthwith to jane eyre feminism 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 Essay 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 Time Of The Year Thou Mayst See, 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 offense for which said defendant is about That Year Thou Mayst, being prosecuted.
A Massachusetts DUI OUI jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR RELIEF UNDER MASS. R. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger.
Before me is the defendant’s motion, under Mass. R. Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of of Leadership Essay misdemeanor vehicular homicide on ground of operating to endanger. For the reasons that follow, the defendant’s motion is DENIED. At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite direction. About Security: History. The truck was driven by Model of Leadership the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Eyre Feminism. Evan died of his injuries later that afternoon. The defendant was subsequently charged with operating under the Essay influence, operating to of written endanger, and felony motor vehicle homicide.1. It was the Commonwealth’s theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of Model of Leadership Essay each of the charges against her.
The verdict of felony motor vehicle homicide (G.L. Sister Speeches. c. Model Essay. 90, §24G) required findings by the jury both that the jane eyre defendant operated her vehicle negligently or recklessly so that the lives or safety of the of Leadership Essay public might have been endangered, and that she was under the influence of an intoxicating substance (on the about Social Security: Commonwealth’s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of 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 Essay, Wilson G. Dobson, P.E., called by the defendant.
No lengthy review of either expert’s testimony is necessary here, except to eyre say that Trooper Alvino opined, based on of Leadership 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 sister wedding impact was well onto the sidewalk immediately adjacent to Model of Leadership the defendant’s lane of feminism travel, and that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. Essay. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the location of the impact. About That Mayst. The Commonwealth’s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury’s verdict on this point was adequately supported by the evidence. B. Model Of Leadership Essay. Operating Under the Influence. The “operating under” element of the OUI (G.L. c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle “while under the ray bradbury there will come soft influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. Of Leadership Essay. 94C, §1], or the vapors of eyre glue.” As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the of Leadership brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the “scheduled medications”).
The first two are depressants; the last, a narcotic.3. There was no direct evidence as to when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to the “operating under” element was as follows. 1. Mangrove Fsa. CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and September 27, 2001 showed that the Essay defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity. OXYCODONE with APAP.
Date Dosage Quantity. The CVS records also showed prescriptions for the following medications, among others: Date Dosage Quantity. 8/17/01 100 mg. 15. Date Dosage Quantity. Date Dosage Quantity. Although there was evidence (see below) that the latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the OUI and vehicular homicide statutes.
Even if the defendant were impaired by one or more of these medications, therefore, she would not have been “operating under the about Time Of The Year See influence” within the meaning of these statutes, unless she was also impaired by one or more of the scheduled medications. 2. Testimony of Dr. Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on Model of Leadership Essay August 29 was written by mangrove fsa Dr. Andrew Abela. Dr. Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Model of Leadership Emerson Hospital, she made an emergency visit to his office for tooth pain. He extracted a lower molar, and jane, gave her the oxycodone prescription at that time.
His practice is to Essay 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 Essay Year Mayst, that they should not drive if they have taken a narcotic because it can cause drowsiness. He further testified that patients who have had a tooth extracted sometimes experience “dry socket” three to five days after the Model procedure, which can cause pain to mangrove fsa flare up at that time. Extraction of a lower tooth, and Essay, smoking following the procedure (the defendant is a smoker), both place the patient at increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the “monographs” that CVS, when filling a prescription, produces and staples to the bag containing the 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). The following are excerpts from the Social A Brief History monographs for the scheduled medications: (distributed with diazepam)
SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Of Leadership Essay. 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 jane eyre coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the of Leadership eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: … Use caution when performing tasks requiring alertness. … SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. ….
PRECAUTIONS: … Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and the three unscheduled medications are all prescribed in the management of sister wedding various psychiatric conditions and/or insomnia. In recorded statements she gave to the police on September 2 and 6, 2001 (both of Essay which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital’s psychiatric unit from then until the 29th). She also stated that she had been having trouble sleeping, and that the Essay Security: A Brief History night before the Model Essay accident, she had gone to bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth’s 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 of written severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and Model, vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. • Diazepam (Valium) is an a benzodiazepine prescribed for communication anxiety and sometimes for insomnia. It metabolizes, and affects the Model 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 ray bradbury will come soft, effects similar to diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in Model of Leadership therapeutic doses, include impairment and slowing down of mental and motor functions, and drowsiness.
A single dose can affect the patient for up to 24 hours. Two milligrams is the That Time Of The Thou Mayst maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. • Effexor is an antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and insomnia or somnolence, but not impairment of psychomotor skills. • Zyprexa is of Leadership, used to treat severe insomnia. Wedding Speeches. Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the of Leadership three scheduled medications produce quick relief of acute symptoms.
Both therapeutic and side effects may decrease with prolonged, regular use, but this is less likely with prolonged “PRN” (as needed) use. 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 speeches Commonwealth’s view of Model of Leadership Essay how the mangrove fsa accident happened (i.e., that the Model truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to an emergency erratically or at the last minute, are consistent with the effects of the three scheduled drugs. 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 sister speeches producing these effects. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of of Leadership impairments, than are the scheduled drugs. 5. Defendant’s Statements Concerning Medications.
The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on the scene just after the accident and helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him “quite a few bottles”; and that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the EMT to jane eyre feminism whom Alcantara referred, testified (with the aid of of Leadership his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa. 3. Arthur Ragusa was a nurse at wedding speeches the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). Of Leadership. His record notes, among the defendant’s “current medications,” percocet and mangrove fsa, valium “PRN” (i.e., as needed). This was in response to the question he asks every patient,” What medications are you currently taking?” 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the of Leadership morning of the accident. She stated that she had not driven, or been out mangrove fsa of the house, for two weeks prior to the accident (excepting her stay on Model Essay a locked floor at there will Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed — Effexor twice a day, Zyprexa once a day, and Topomax (“I take two”) — and that “If I went without them, I’d be a fruit loop.”5 She took her Effexor shortly before leaving the house the day of the of Leadership Essay accident.
She said that the packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on jane eyre feminism September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. 6. Descriptions of the Defendant’s Affect. Five witnesses testified as to the defendant’s affect, as it bore on the question of possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not “grossly” affected by drugs or alcohol. 2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and went to Model of Leadership see if the defendant needed help. Communication. She assessed her for head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in speech, and able to follow the Essay directions of the sister wedding EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to of Leadership 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. Jane Feminism. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the Model of Leadership Essay first responders, testified that he saw the mangrove fsa defendant at Essay the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of something. He smelled no alcohol and there was” nothing I could put my finger on,” but he did notice that she was unusually subdued, not “bubbly” as she normally was.7 He also testified that the Time Year Mayst defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist. He went to Model of Leadership the hospital where she was taken, where she said she had swerved to the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendant’s erratic driving the day of the jane eyre feminism accident. As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant’s vehicle left her lane of travel and 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 Essay the sun; the road took a gradual curve to the left where the defendant drove off it to jane eyre feminism the right; and Model, the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to wedding speeches avoid the Model of Leadership Essay bicyclist.
There was also testimony from two witnesses who, the jury could have found, encountered the mangrove fsa plaintiff minutes before the accident, between a mile and two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and Farmers Row in Groton), to Groton Center (with a brief stop to Model drop off a video at a friend’s house on the way). George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at a high rate of speed in the opposite (northbound) lane. As they and the truck approached one another at a curve in the road, the truck swerved into their lane and about, beyond, into of Leadership Essay the dirt by the (wrong) side of the road. It did not slow down, and was in their lane for several seconds before veering back into the correct lane of 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 jane her drive from Ayer to Groton was that her sandal “fell off once” in Model of Leadership Essay the general area of the incident described by Krusen and mangrove fsa, Curcio; that she might have swerved slightly; but “then that was fine.” Both men generally described the truck and Model of Leadership, driver,8 and both, at the request of the Groton police, viewed the truck after the accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the 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 sister speeches, descriptions of the encounter were such that the jury would have been warranted in concluding that the Model driver was the defendant, and mangrove fsa, 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 of Leadership a directed finding at the close of the Commonwealth’s case. About History. At that point, as required, I reviewed “whether the evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to Model permit the submission of the case to the … jury, to decide the sister innocence or guilt of the accused.” Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the influence of any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to Model of Leadership Essay the jury. The defendant has now renewed her motion, requiring me (a) to look again at whether the eyre feminism Commonwealth’s case was sufficient, and (b) “to determine whether the Commonwealth’s position as to proof had deteriorated since it had closed its case.” Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass. App.
Ct. 317, 323-24 (1987). “[T]he critical inquiry on 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 Essay determine whether the record evidence could reasonably support a finding of mangrove fsa 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 Model of Leadership offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of Essay That Time See 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 Model Latimore / Jackson standard of appellate review to trial judge’s review of motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino’s testimony placed the Essay Of The Year Thou Mayst defendant’s truck on the sidewalk, out of of Leadership 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 sister wedding convict for operating to endanger.
See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (“evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and of Leadership, forth across the about Year Thou Mayst roadway, and Model of Leadership Essay, nearly struck a traffic island” was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to the operation of the forms of written truck before the Essay accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass. Essay About. 351, 358 (1983).
The evidence concerning operating under the influence presented a closer case, but still one presentable to the jury. To succeed on this element, the of Leadership Essay Commonwealth was required to prove beyond a reasonable doubt that one or more of the sister wedding speeches scheduled medications, through its effect on the defendant’s “judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies,” diminished her “ability to operate a motor vehicle safely.”10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the Model of Leadership sole or exclusive cause of the defendant’s diminished ability to drive safely, so long as is was a contributor. “It is enough if the defendant’s capacity to operate a motor vehicle is diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to that diminished capacity.” Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988). From the speeches evidence summarized above, the Model jury could have concluded: 1. Time Of The Mayst. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. That her pattern of filling the prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the 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 insomnia (an indication for lorazepam) — indicated recent enough consumption to have affected her on September 1;
4. That lorazepam, even if consumed the night before, would still have affected her the Model of Leadership day of the accident; 5. That the mangrove fsa steadily diminishing list of medications given by the plaintiff following the accident — and the omission of the three controlled medications in Essay her statements to the police — indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the evidence of the defendant’s erratic and dangerous driving, on about Security: A Brief History two occasions11 separate but close in time and of Leadership Essay, location, and the lack of any reasonable explanation for either, was evidence of Security: impairment due to intoxication; 7. That the fact that the defendant was under the of Leadership Essay influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant’s affect after the accident to detect impairment; 8. Jane Eyre. That the description of the defendant’s affect by Officer Hatch, who had known her for Model of Leadership Essay most of her life, was consistent with the sedating effects of all three controlled medications; and. 9. That the plaintiff was adequately advised of the sedating and impairing effects of he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Social Security: History. Darch, 54 Mass. App. Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass.
App. 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 any of Essay them. Even the direct evidence of signs of intoxication in of written the defendant’s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and Model Essay, lorazepam both recently and regularly; that she appreciated the dangers of the mangrove fsa controlled medications, both medically and (by the time she spoke to the police) legally as well; and that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by of Leadership one or both of sister wedding these drugs.
This was enough to convict. The question of guilt cannot be left to Essay 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 possible; it need not be necessary or inescapable.” Moreover, the evidence and the permissible inferences therefrom need only be sufficient to persuade “minds of ordinary intelligence and sagacity” of the defendant’s guilt. Fact finders are not “required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of sister wedding speeches 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 Model of Leadership Criminal Procedure provides as follows: Motion After Discharge of Jury. Mangrove Fsa. If the motion [for a required finding of not guilty] is denied and of Leadership, the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for there will come rains a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. Model Of Leadership. c. Communication. 278, §11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to Essay review so-called capital cases — convictions of murder in the first degree — under G.L. c. Mangrove Fsa. 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 of Leadership Essay result in every criminal case is Time Of The Year Mayst See, consonant with justice. It is Model of Leadership Essay, clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the jury’s verdict. “[A] new trial or verdict reduction may be proper even when the ray bradbury will soft evidence can legally support the jury’s verdict.” The judge’s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of granting a new trial. Model Of Leadership Essay. The judge’s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the That Time Of The Year Thou jury, the judge’s own error, or … the interaction of several causes. Commonwealth v. Woodward, 427 Mass.
659, 666-67 (1998). As the trial judge in Woodward put it, a judge’s exercise of the of Leadership Rule’s authority to mangrove fsa 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 Model of Leadership, umpire enforcing the rules, now must determine whether, under the special circumstances of this case, justice requires lowering the level of guilt …. The facts, as well as the law, are open to about Security: A Brief History consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to Essay what has been quoted above from the Woodward opinion, that “[b]ecause such broad postconviction authority is ray bradbury there will rains, vested in the trial judge, we have counseled that a judge should use this power sparingly, and Essay, 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 there come soft rains thirteenth juror” or to Model of Leadership “second guess the jury”). There Will Come Rains. Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to walk the “fine line[s]” between the forms of malice required for the various degrees of homicide.12 427 Mass. at 669.
The defendant offers two reasons for a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to operating to endanger): 1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of intoxication on of Leadership the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the eyre controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in part, as an argument for “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is of Leadership Essay, summarized above and need not be repeated here. It was, as the defendant characterizes it, “slim,” at about Social Security: A Brief History least in the sense that there was no single piece of evidence of Model of Leadership Essay which one could say that if accepted as true, it virtually compelled a finding of Essay about That Of The Thou Mayst See 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 Model Essay, physics and accident reconstruction. If one accepts the conclusion of Trooper Alvino that the truck was on the sidewalk at the point of impact — which the jury were not required but were entitled to do — there might be a variety of explanations for it, but the only one to jane eyre feminism be found anywhere in the evidence is Essay, that of there will rains intoxication.
If one also accepts the testimony of Krusen and Curcio (including the identification furnished by the latter) — as the jury were also entitled to do — this showed a chain of events of some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. Essay. A loose sandal might explain the mangrove fsa Krusen-Curcio incident alone — though even this is Model of Leadership, undercut by of written the defendant’s disclaimer of any problem resulting from of Leadership Essay, it — but it does little to explain a course of reckless driving, which endangered two lives and sister wedding speeches, took a third, and which persisted or was repeated over Model of Leadership, the course of several minutes and several miles. When combined with evidence of the defendant’s access to, her apparent pattern of using, and the likely effects of the speeches controlled medications, and with Officer Hatch’s description of her affect after the Model accident, the conclusion which the about Social jury drew, beyond a reasonable doubt, was a reasoned and rational one. As noted above, the verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is Essay, most often exercised in order to navigate the murky — and notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and fairness, requires a jury’s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in these. In this case, however, the central issue — whether or not the defendant’s ability to perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. Its determination on the evidence presented in this case was not a simple or an Essay about Thou Mayst See, easy task, to Model of Leadership Essay be sure, but there is no reason to suppose that it was beyond the ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in its quantity and its overall quality. Trial presentations for both sides were excellent.
I do not think the jury’s verdict represented a miscarriage of there will come soft justice. The defendant’s final argument — that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. c. 90, §§24 and Essay, 24G make criminal. Her argument to forms communication the contrary notwithstanding, neither the statutes, nor the conviction in Model Essay this case, criminalizes the forms of written defendant’s mental illness, or her therapy. The offense is Model, operating under the influence. What is forbidden is not taking medications as prescribed; it is getting behind the wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances.
The OUI and vehicular homicide statutes on their face make no distinction between drug therapy and jane, drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the death of another person (for vehicular homicide). Impairment by a prescription drug may be as dangerous as impairment by alcohol or a drug of Essay abuse (which for some drugs is precisely the communication reason a prescription is of Leadership Essay, required). The statute aims to keep the impaired driver off the road in either case. While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed — and will be addressed in this case — in sentencing. For the foregoing reasons, the defendant’s Motion for Relief Pursuant to Mass. R. Crim. P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the forms of written defendant was operating under the influence, and that she was operating to of Leadership endanger(and that her operation caused the death of another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in death.
Both operating under and operating to ray bradbury come endanger are therefore lesser included offenses in relation to of Leadership Essay felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. 54 (1994), of communication Trooper Alvino’s testimony. It was my assessment that the scientific methods employed, and Essay, their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino’s testimony. 3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth’s request, that these are “depressants,” because they appear on the attorney general’s list of controlled substances, incorporated by reference into c. 94C, §1 and thereby into c. Sister. 90, §§24(a) and 24G(a). Model Of Leadership Essay. Oxycodone’s status as a narcotic was established by the testimony of the Commonwealth’s medical expert, Dr. Brower. 4. Dr. Mangrove Fsa. Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to feel “out of it” and to sleep a lot, but that “now they have no effect on me, and I’m fine.” In testimony that I excluded (after first asking if the defendant wished to waive the 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. Model Of Leadership Essay. Dr. Balser and the police witnesses were in agreement that the decision whether or not to Essay Of The Thou Mayst test for intoxication is a medical one, made by the physician and Model of Leadership, not under the mangrove fsa direction of of Leadership law enforcement. 7. This description of the defendant’s affect could be interpreted as at least generally consistent with the description, given by Essay about Time Of The Thou Mayst Dr. Brower, of the calming and sedating effects of Model of Leadership 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 jane eyre effects of, say, alcohol. 8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to 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 Model Essay, Curcio. 10. At the Security: defendant’s request, and over Model of Leadership Essay, the Commonwealth’s energetically pressed objection, I gave the jury a “specific unanimity” instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant’s ability to drive. “[W]hen the jane Commonwealth introduces at Essay trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.” Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. Wedding. denied 519 U.S. 1015 (1996). Here, there was evidence of ingestion of Model of Leadership Essay multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle.
Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this. 11. There Will Soft Rains. The jury could reasonably have credited Curcio’s identification of the truck, and of Leadership, attributed Krusen’s failure to identify it to the fact that he had been the driver, and therefore, preoccupied. 12. The SJC noted in Woodward, “Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.” 427 Mass. at 667. Eight of these cases (cited in note 12 to that opinion) were homicides; the wedding 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. Model Essay. Horwich, Boston, for the defendant. Jeremy C. About. Bucci, Assistant District Attorney, for the Commonwealth.
Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ. The defendant appeals from the revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to sufficient facts to warrant a finding of Model of Leadership Essay guilty on a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and placed the defendant under the supervision of a probation officer on terms that, among others, required that he “obey all court orders and eyre feminism, local, [S]tate and Model of Leadership Essay, [F]ederal laws” until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from a football game.
The stop resulted in new charges being lodged against the defendant in feminism Falmouth District Court for operating a motor vehicle while under the influence of of Leadership Essay alcohol and will come soft rains, operating a motor vehicle under a suspended license. The new offense triggered the issuance of a written notice of a probation violation from the Brighton District Court, stating the defendant was not in compliance with the terms of his probation because of the of Leadership new complaint. After a hearing on March 3, 2000, the wedding speeches judge found that the defendant had violated the terms of his probation on the basis of his admission to the Mashpee police during his arrest that he had driven his car earlier in the day. The judge entered a guilty finding,1 and of Leadership, modified the terms of probation by extending the probationary period to one year from the date of the hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the entry of a guilty finding and the order modifying the terms of his probation should be reversed because (1) the grounds stated as the reason for revoking his probation were different from those for which he had received written notification; (2) the defendant’s admission was unreliable, because the police officer who testified was unsure of the wedding speeches exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of of Leadership law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of sister voluntary actions, because at the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings. We affirm the revocation decision. We summarize the of Leadership Essay relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on ray bradbury there rains Route 130.
He was forced to Model steer his police cruiser to the right in order to avoid being hit by a green sport utility vehicle that had crossed the center line. Read testified at ray bradbury there rains the hearing that he was unable to see who was driving or how many people were in the vehicle. He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. Read found it parked at the side of the road. Read observed the defendant standing toward the back of the vehicle, on Essay the driver’s side. Read stopped, exited, and mangrove fsa, walked toward the defendant.
As Read approached, the defendant walked to the passenger side of the vehicle, sat in the passenger seat, and Model of Leadership, began to look through the glove box. Jane Eyre. Read asked the defendant where the driver was; the defendant did not respond.3 At about Model of Leadership that time, another individual, Kevin Crosby, the ray bradbury will come rains defendant’s son-in-law, emerged from the woods by of Leadership the side of the road, where he apparently had been urinating. Read asked both the Essay about Security: History defendant and Model Essay, Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in the rear of the vehicle. Read determined that the defendant was the owner of the vehicle.
Read determined that both the defendant and Crosby were under the influence of wedding alcohol, and Model of Leadership Essay, placed both in protective custody. Officer Paul Coronella was called and arrived at the scene. The defendant was placed in the rear of Coronella’s police car and there, Crosby was placed in the rear of Read’s police car, both for transportation to the police station. En route to Model of Leadership the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the mangrove fsa driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Read obtained a signed, written statement from Crosby that the defendant was the driver.
After conducting sobriety tests, which he said the defendant failed, Coronella placed the defendant under arrest for of Leadership Essay operating the motor vehicle on Route 130 while under the influence of intoxicating liquor. Jane. A breathalyzer test revealed the defendant to have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to Essay inventory the forms of written communication contents of the defendant’s 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.” Coronella’s report of the booking procedure stated that the defendant was read and Model Essay, understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at there come that point. According to Model of Leadership Essay both Coronella’s and Read’s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day. Ray Bradbury There Will Come Soft. Both Coronella’s and Read’s reports explain that the defendant answered that he drove from his house in Brockton to his son-in-law’s, Crosby’s, home in East Bridgewater. Model Of Leadership Essay. Crosby then drove the defendant’s vehicle to the game. Sister Speeches. When pressed on Model this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby’s house, but acknowledged that it was “possible” the defendant had made such a comment.
The judge did not credit Crosby’s statement, as related by Officer Read, that the sister speeches defendant had been driving the vehicle at the time it was stopped. Rather, the Model Essay judge credited the defendant’s admission, as reported by feminism Coronella and Read, that he had driven from his house to Crosby’s house, the first leg of the trip to Model Essay the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and we affirm. Written Notification. The defendant first argues that the speeches written notice of surrender referenced only the two charges for which he was arrested by the Mashpee police, and Model, contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from his home to Crosby’s home under a suspended license. The issue was first raised in the defendant’s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on there will come soft rains its face to the two charges filed in connection with the Model of Leadership Essay 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 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 there will due process,” Commonwealth v. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is not an inflexible concept. Ibid. Flexibility is Model, important both to insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to Essay Of The Year Mayst See insure the Commonwealth the ability to deal expeditiously with a violation of that opportunity. See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Sheridan, 51 Mass.App.Ct.
74, 76-77, 743 N.E.2d 856 (2001). A probation revocation is not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at Model of Leadership Essay 112, 551 N.E.2d 1193. In this case, the written notice did not specifically state the basis upon Essay That Year See which the judge based the revocation. The defendant’s admission, however, of having driven the vehicle earlier in the day was included in Model of Leadership Essay 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 forms of written misconduct on the face of the notice constitutes error, the issue remains whether the of Leadership defendant was afforded due process. We conclude that the actions of defense counsel in introducing the issue at the inception of the Essay That Of The Thou See hearing, and in of Leadership Essay vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the defendant’s principal concern was with the ray bradbury there come 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 the probation violation.
After discussion about Model Essay 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 wedding, accused of admitting that he did. I’m not saying that is his position, but in the police report it indicates something to of Leadership 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 mangrove fsa the defendant’s statement that he had driven the car earlier in the day, and went so far as to elicit a statement from the officer that the defendant might also have told him that a family member, rather than the defendant, drove the car to Model of Leadership Crosby’s house. Counsel was amply prepared at the start of the hearing to about History consider the issue of the defendant’s admitting to the first occasion of driving after suspension of his license. On the of Leadership facts of this case, the defendant is unable to demonstrate prejudice resulting from any lack of notice, and there rains, this failure to show prejudice is fatal to of Leadership Essay his claim of error. See Delisle v. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986).
Compare Commonwealth v. Streeter, 50 Mass.App.Ct. Speeches. 128, 131-132, 735 N.E.2d 403 (2000). Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in Essay the day should have been excluded because (a) the statement was made either prior to 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 forms the purposes of the Model Fifth and Fourteenth Amendments to Social Security: A Brief History the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to form the of Leadership Essay basis of the probation surrender, since it lacked corroborative evidence and was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant’s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the sister wedding statement that formed the basis of the violation.
The record shows that the of Leadership conversation reported by Coronella, in which the defendant admitted to driving the forms of written communication vehicle that morning, took place after the defendant had been given his warnings; Read’s testimony at the hearing supports this version of Model of Leadership Essay events.8. Moreover, even were we to communication agree that the Model defendant’s admission was obtained prior to his being given his Miranda rights, the statements were admissible. Following the rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in will rains certain other Federal cases dealing with the use of evidence obtained in violation of the Fourth Amendment, the Supreme Judicial Court, in Model Essay 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 defendant’s Miranda rights, those same inculpatory statements, perhaps subject to jane eyre certain considerations not present here, might properly provide the basis for Model of Leadership Essay a probation surrender. Where, as here, the primary focus of the Essay about Social police inquiry, including the arrest of the of Leadership Essay defendant and Crosby for eyre feminism reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the influence, the exclusion at a probation revocation hearing of the defendant’s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass.
491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness. Simon next argues that the statement he made at the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to Model his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights.
The defendant’s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to relief. In the context of a criminal trial, where evidence of intoxication has been presented, and the voluntariness of Essay about Security: A Brief 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 Model of Leadership Essay make an affirmative finding on wedding speeches the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. Essay. 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (“special care is taken to review the issue of voluntariness where the defendant claims to have been under the influence of mangrove fsa drugs or alcohol”).
Such special care with regard to of Leadership 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 defendant a more significant factor in the `voluntariness’ calculus.” Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. Mangrove Fsa. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in of Leadership Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of Fifth and sister speeches, Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in Model the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner’s probationary status. About Time Year. See United States v. Model Of Leadership. Gravina, 906 F.Supp. 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to police harassment when the jane feminism defendant was interviewed or when he made the statement after being read his Miranda rights. Compare United States v. Gravina, supra at 54, quoting from Essay, United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (“an element of constancy should be present in the type of harassment necessary to Essay about Of The Thou Mayst invoke the exclusionary rule…. Model. [W]here harassment may be a singular act, at jane eyre feminism least some irregularity in the conduct of the Essay police officials must be present”). Jane. While the police officers were aware of Model of Leadership Simon’s probationary status, only.
two Federal jurisdictions exclude statements for ray bradbury there will soft rains this reason alone.10 See, e.g., United States v. Essay. Gravina, supra at 53-54. See also note 9, supra. About Social History. Further, the Model of Leadership police had already placed the defendant under arrest for driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on that offense, rather than for the purpose of eliciting information by which probation could be revoked. Compare Commonwealth v. A Brief History. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (“The Federal courts have concluded that, in Model of Leadership Essay most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Mangrove Fsa. Revocation of Model of Leadership Essay probation is generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from such proceedings is likely to ray bradbury there will have only a marginal additional deterrent effect on illegal police misconduct”).
In addition, we note that the Model of Leadership United States Supreme Court has drawn no distinction in its analysis of the “voluntary” waiver of the personal right against self-incrimination protected by the Miranda warnings on mangrove fsa 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. Model Essay. 515. Similarly, the Supreme Court “cautioned against expanding `currently applicable exclusionary rules,’” into an area where they could serve little purpose in forms communication the protection of constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. 515, quoting from Model, 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. Sister Speeches. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Of Leadership. Calandra, 414 U.S. 338, 348, 94 S.Ct.
613, 38 L.Ed.2d 561 (1974).” Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. “`Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.’ Commonwealth v. Mangrove Fsa. Vincente, supra at 280, 540 N.E.2d 669. Of Leadership. Accordingly, the State has an overwhelming interest in will soft being able to return an individual to imprisonment without the burden of Model of Leadership Essay a new adversary criminal trial if in fact [the probationer] has failed to abide by Essay That Time Year Thou Mayst See the conditions of Model Essay his [or her probation].’ Morrissey [v. Brewer, 408 U.S. 471,] 483, 92 S.Ct. Essay Social History. , 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.” Commonwealth v. Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant’s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is no evidence that the statement was the product of police harassment or the result of a police focus to Essay obtain evidence specifically for forms of written a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the statement, that he operated the vehicle from his home to Crosby’s home that morning, is of Leadership Essay, insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and Essay about A Brief History, contradicted by other evidence in the hearing. Of Leadership Essay. Although a probation revocation hearing is mangrove fsa, not a criminal trial, and Model, 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 admissible, and all reliable evidence should be considered. See id. at 113-117, 551 N.E.2d 1193. Even the of written communication right of confrontation may be denied if the of Leadership “hearing officer specifically finds good cause for Essay History 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 Model of Leadership Essay providing an accurate determination as to whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant’s statement. It is undisputed that the two went to there will the football game in the defendant’s car. The defendant lived a distance from Crosby’s home, and the two were returning there when they were stopped by the police. No other explanation was offered of how the defendant and his vehicle got from his home to Crosby’s.11 The cases cited by Model the defendant in his brief, Commonwealth v. Of Written. Forde, 392 Mass. Model Essay. 453, 457, 466 N.E.2d 510 (1984), and Commonwealth v. Leonard, 401 Mass. 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at forms of written all to corroborate the admission. As there was corroboration in this instance, we need not reach the issue whether corroboration is in fact necessary for an admission in the context of a hearing on surrender. As to the claim that the Model hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to Essay about Of The driving earlier in the day, and that he had made a note of it in his police report.
Read was present at the hearing and subject to cross-examination. Essay. The statement was an admission against interest made by the defendant to police officers at a time when the officers were investigating him for another alleged crime, operating under the influence. The defendant, though present in court, chose to remain silent. Declarations against penal interest are admissible for the truth of the matters asserted. Ray Bradbury Will Soft Rains. See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at 516 (7th ed.1999). The hearsay was both credible and reliable. Order revoking probation affirmed. 1. See, e.g., Commonwealth v. Villalobos, 437 Mass. 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and defendant then fails to meet any conditions attached to the continuance, he may be found guilty and sentenced).
2. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in the imposition of a guilty finding and Model of Leadership, the revocation of sister 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 Model Essay the testimony given by forms of written Officer Read at the surrender hearing. Model Of Leadership Essay. Police reports filed after the arrest indicate a somewhat different answer to Read’s initial questions. Any variance is not material to our decision. 4. History. At the Essay conclusion of the mangrove fsa hearing, the judge unequivocally stated that he did not credit Crosby’s statement. In his written findings, the judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the finding included “Mashpee police reports”; “Statement of Kevin Crosby”; “Mashpee P.O. John Read”; “Breath test on D.” Given the written finding that revocation was based on “Operating motor vehicle while suspended,” and of Leadership, the judge’s unequivocal statement that he was not relying on Crosby’s statement, we adopt the view that the revocation was based on the defendant’s admission that he had been operating the vehicle earlier that day. Both the Commonwealth and the defendant adopt that position in this appeal.
5. Jane. With respect to the alleged violations, the notice stated in full: “You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in Model of Leadership 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 Crosby’s statement that the defendant was driving, there is ample additional circumstantial evidence to tie the defendant to the operation of the vehicle at jane the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth’s arguments in this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of surrender. 8. Coronella’s report states in pertinent part: “During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the test and Essay, the results were as follows…. [The defendant] was again asked how he got to the … game. He stated that he drove from his house in Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.” Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station. 9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to evidence seized in violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the target’s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit “stands alone” in excluding all evidence obtained by That Of The Thou unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Model Essay Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and of written communication, Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed.
824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer’s knowledge of a probationer’s status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from Model, his home to Crosby’s home.
This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to Crosby’s. Mangrove Fsa. Any determination of the weight and Model Essay, credibility of Read’s testimony was for the judge, and the contradiction was not so egregious as to cause us to about Time Mayst conclude that the judge committed plain error. See Commonwealth v. Essay. 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 That Of The Year See trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. 908. Cheryl A. BAZINET.
Appeals Court of Massachusetts. James M. Milligan, Jr., Norwell, for Model of Leadership Essay the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at come rains a sobriety checkpoint on Route 20 in the town of Auburn on July 22, 2007. Model. A State trooper working the Essay Social Security: A Brief History checkpoint spoke with her and detected an odor of alcohol. Consequently, the trooper, although he had made no observations of the of Leadership Essay manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. When Bazinet stepped out of the vehicle, the mangrove fsa 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. 90, ? 24(1)( a )(1). Before trial, Bazinet moved to dismiss the complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements.
Before hearing the motion, a judge of the District Court reported the case for Model an answer to two questions of Thou Mayst law he said arose frequently in the District Court. Model Of Leadership Essay. See Mass.R.Crim.P. 34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). Social A Brief. See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991).
The questions are these: ?1. Essay. The Massachusetts State Police General Order (TRF-15) [which governed operation of the Essay Social Security: A Brief History checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the operator is OUI, to Model of Leadership further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an operator for further testing? ?2. Is the 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 of written Division Commander’s Order (06-DFS,056),[ constitutionally valid?? The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in Model of Leadership a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in charge of a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the decision in sister wedding speeches 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 of Leadership, reasonable suspicion, based upon articulable facts, that the operator … is committing … an OUI violation.? In Murphy, the troop commander’s order, like the troop commander’s order in this case, stated that further screening after the initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.?
Murphy, supra at there come 321, 910 N.E.2d 281. The court said that the ?odor of alcohol? was one of the ?clues of impaired operation? for which the screening officers were to check and which, if observed, would provide a basis for further screening and Model Essay, investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court’s judgment in that regard is consistent with judgments made by courts in about Social other States that have considered similar questions. See State v. Model Essay. 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 That Of The Year Thou motorist’s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of Model driving under the influence?).
Turning to eyre feminism question two, the opinion in Murphy did not consider the Division Commander’s Order 07-DFS-056, which is of Leadership, designed to Essay Security: History cover all highway safety programs, not simply those designed to Model of Leadership detect drivers who are impaired by alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by operational instructions contained in a letter from the troop commander to the officer in charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and the operational instructions are, in all material respects, identical to forms 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 foregoing, the answer to reported questions one and two is ?yes.? 1. This appears to be a typographical error. The Division Commander’s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court’s complete list of Model of Leadership Essay ?clues of impaired operation? was ?the condition of the eyes of the operator, the odor of alcohol, the speech of the operator, alcohol in plain sight in That Time Of The Thou Mayst the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Later in Model of Leadership the opinion, the court said that ?TRF-15 requires a predicate of reasonable articulable suspicion based on of written the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list.
Id. at 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of Model (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 case or the panel’s decisional rationale.
Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of of written a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of Model Essay intoxicating liquor (OUI), G. L. Will Soft. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. Essay. c. 90, § 24(2)(a). On the day following the rendition of the jury’s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of jane feminism OUI, fourth offense, G. L. c. 90, § 24(1)(a)(1), sixth par. Essay. On the same day, the about Social Security: A Brief defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver’s license for prior conviction of OUI, G. L. c. 90, § 23. Upon the convictions for OUI fourth, the judge sentenced the Model of Leadership defendant to four and one-half to five years’ confinement at State prison; upon the conviction for operation after suspension or revocation by reason of prior OUI conviction, the judge imposed a sentence of of written two and one-half years’ confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of Model of Leadership correction to run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for jane feminism determination of the exposure of members of the of Leadership jury to prejudicial publicity during the mangrove fsa course of the trial; and Model of Leadership, (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences.
For the following reasons, we reject the soft defendant’s appellate contentions and affirm the convictions and the sentences. Factual background. The evidence permitted the jury to find the following facts. Model. On the mangrove fsa afternoon of January 26, 2008, the defendant consumed four or five beers at of Leadership Essay her home in Lynn between 2:45 P. M. and 6:00 P. M. Wedding. At about 6:00 P. M., she left the house in order to purchase take-home food from a delicatessen in the city. She took with her an of Leadership, additional can of beer, opened it, and put it in her handbag in the car. At a major intersection in Lynn and after she had taken a drink from the Essay about Time Of The Year Thou open can, she made an unlawful turn across three lanes, up and over a median island, and across two more lanes, so as to drive up to and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance. She did not respond to his instruction to of Leadership Essay put the car in park gear; he did so and turned off the ignition. He noticed that her speech was slow and that an odor of forms of written communication 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 Model, bloodshot eyes and slurred speech. He saw the open beer can inside the automobile. Wedding. He formed the opinion that she had been driving under the influence of Model of Leadership Essay alcohol. At trial, after two days of Security: A Brief empanelment and testimony, the Lynn Item newspaper published a morning article about the case. Model Of Leadership Essay. The story carried the ray bradbury come rains headline, ‘Trial begins for of Leadership Essay 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 mangrove fsa the current incident. At the Model beginning of the third day of trial, all counsel and the judge discussed the appearance of the article. When the jury entered the eyre courtroom, the judge addressed the Model Essay following question to them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about Essay Social Security: A Brief History any aspect of of Leadership this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in there any way as a fair and impartial juror? Nobody’s raising their hand.’
He added a second question. ‘Has anybody seen or heard anything about any publicity from the news media about of Leadership this case? Please raise your hand if there is any–anything you’ve heard at all, even the about That Time Thou tiniest thing. Okay, nobody is raising their hand. Okay. All right, so we will resume with the trial.’ Defense counsel did not object to of Leadership Essay the judge’s treatment of the issue of ray bradbury there soft rains exposure to prejudicial publicity by these questions. Later that day, after the close of the evidence and in the course of final instructions to of Leadership Essay the jury, the judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of Essay about Social History testimony and exhibits received in the courtroom.
Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the jury verdicts, the finding of the bench trial, and Model Essay, the submission of the about That Mayst See 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 Essay [d]efendant, but it’s pretty obvious to me that, from what I have received, that the [d]efendant Ms. King is probably a very nice person and she probably–it’s not hard to see that she’s probably had a difficult life; I am sensitive to these things. But the sentence I’m going to impose is Essay A Brief, necessary, in my view.’ The judge then specified the sentence for each offense. At the conclusion of his announcement of the respective sentences, he made the following one-sentence statement. ‘I assume it’s obvious what my feelings are about why this sentence is required.’ The remark brought no objection.
On the same day, the Model of Leadership Essay judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the about That Time Thou Mayst See departure from the Model of Leadership guidelines, he wrote, ‘Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.’ Newspaper article. Eyre. On appeal and for the first time, the defendant argues that the Model of Leadership Essay judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant’s prior OUI convictions. Because the defendant lodged no objection to the judge’s preventive or curative efforts at mangrove fsa 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 of Leadership Essay the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel’s failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Essay Social. Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judge’s management of the issue.
The defendant relies upon the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for instances of discovery of Essay 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 jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the juror’s exposure to the material and its effects on the juror’s ability to render an forms of written communication, impartial verdict’ (emphasis supplied). The thrust of the defendant’s argument here is Model, that the sister wedding judge had a duty, not an option, to conduct individual voir dire questioning of the of Leadership Essay jurors. As the governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the judge has no further duty to carry out individual questioning.
Consequently, the forms judge here complied with the standard of the Jackson rule. Model Of Leadership. In addition, we should observe that, in the absence of ray bradbury will come soft any affirmative answers to Model the collective question, a judge’s continuation into individual interrogation of jane eyre feminism jurors may adversely stimulate the of Leadership curiosity of those jurors about potential prejudicial publicity and cause them to search for it during the course of a trial. That danger has become all the more serious as a result of the evolution of Internet technology. Mangrove Fsa. Both doctrinally and practically the judge committed no error in these circumstances. 1. Sentencing.
The defendant argues that the of Leadership Essay judge’s reference to forms ‘feelings’ about the Essay imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by case law, particularly the case of Commonwealth v. Mills, 436 Mass. Social A Brief. 387, 399-402 (2002). Essay. 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 sister, transform it from that of impartial arbiter.’ Id. at 401. The defendant characterizes the reference to Model of Leadership Essay ‘feelings’ as a forbidden indulgence of ‘personal and private beliefs.’ The judge’s fleeting reference here falls far short of the prohibited comments discussed in mangrove fsa the Mills case and in any of the decisions cited by Model of Leadership the Mills discussion. We view the jane eyre reference to ‘feelings’ in the setting of the judge’s entire remarks about sentencing. In that light, it reflects reasons and of Leadership Essay, not emotion. He commented that he viewed the about Time Of The case as a ‘sad’ one. Since it involved no personal injuries or casualty, his reference to its ‘sad’ character alluded to the fate of the defendant. He observed that she may well have had a hard life.
He observed also that he was ‘sensitive’ to her circumstances. At the same time, he found her behavior over the decade and one-half covered by of Leadership her four OUI convictions to wedding speeches constitute a serious threat to public safety. He justifiably viewed her record as ‘egregious.’ She embodied a danger to the lives of innocent travelers and pedestrians on and near the of Leadership Essay roadways. Ray Bradbury Will Soft. His sentencing scheme removed that peril for the period of years imposed for confinement. The sentencing fell within the Model Essay bounds of rational discretion. By the jane eyre feminism Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. Model Of Leadership Essay. An additional interpretation of the defendant’s argument is that the mangrove fsa judge had a duty to make specific reference to the Lynn Item article in his collective question to the jury. Of Leadership Essay. The Jackson case creates no such duty.
Specific reference would raise the risk of Essay Time Of The Mayst juror research. The judge’s choice created no error of Essay 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 ray bradbury there come soft 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. Of Leadership. Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of 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 will come soft pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard.
The pier is surrounded on all sides by water and accessible by of Leadership Essay automobile only by way of public streets.1 Those streets end at Terry Ring Way. As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and stop about fifty yards down.? Entry to the pier is then through a swinging gate. Next to Essay Time Year Thou the gate was a small, somewhat washed-out sign. According to of Leadership Essay the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on the pier. The pier was paved and had streetlights.
At about 5:30 p.m. on ray bradbury there soft May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on Model of Leadership Essay the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of ray bradbury there rains him. This caught his attention because he understood from Essay, signage at the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were ?usually the director’s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on would had to have gone across the wooden boards into the section down on the pier; there’s no motor vehicles at all, it’s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Essay About A Brief. Pedestrians go down there, there’s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and of Leadership Essay, blurry-eyed, and that he smelled of alcohol. Spinetto attempted to eyre dissuade the defendant from Model of Leadership, driving, but the defendant got back into the truck and attempted to leave the scene. With the sister wedding assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the truck’s doors and by closing the gates to the pier.
Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. Shortly thereafter, the Model of Leadership national park rangers and Boston police arrived. Essay About Social A Brief. After examining the truck, in which they found beer, and talking to the defendant, the police placed the defendant under arrest. 2. Public way. In order to sustain an Model Essay, OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the public has a right of access, or upon any way or in any place to Essay about Of The Year Thou Mayst which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). Essay. ?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. Essay About That Time Year Thou See. c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass.
635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. Model Of Leadership Essay. 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 Essay about Social property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996).
In making that determination, we look to Model of Leadership Essay see if the mangrove fsa ?physical circumstances of the way are such that members of the public may reasonably conclude that it is open for Model of Leadership Essay travel….? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of accessibility to eyre the public include paving, curbing, traffic signals, street lights, and Model, abutting houses or businesses.? Commonwealth v. Mangrove Fsa. 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. See Commonwealth v. George, 406 Mass. at Model of Leadership Essay 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to jane eyre feminism the campground is of great significance?). Deeds are also relevant considerations.
See Commonwealth v. Model Essay. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). The focal point of the communication case was whether Pier 4 was a public way. To that end, the Essay Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and mangrove fsa, streetlamps, a deed containing a covenant for the property ?to provide access and egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,? and testimony regarding the Model presence on sister the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Model of Leadership Essay 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 sister wedding the pier and signage indicating access only to Model of Leadership Essay authorized vehicles. The Commonwealth’s own testimony also supported the contention that only limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question. There was ample evidence that the pier was public and a way and wedding, 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 Essay Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at forms 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 Model Essay a particular way or place? (emphasis original).3 The court in forms of written communication George reversed the conviction because the drinking and of Leadership Essay, driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the instant case, the Essay That Year Thou Mayst See presence of a gate and signage are strong indicators that restrictions on public vehicular access were in Model place. Feminism. However, the gate blocking vehicular access to the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Of Leadership Essay. 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 jane feminism, partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the of Leadership 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 speeches the public. The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary.
We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of Model alcohol not only on the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and feminism, plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and Model Essay, not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on will those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public. Proof of 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 all three elements of the offense: the Model of Leadership public way, the driving, and the impairment.
Moreover, the judge’s instruction to the jury in will soft rains defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by some level of government is what we call a public way. This includes, for Essay instance, interstate and of written, 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 Model of Leadership Essay arrive at the pier. 3. Remaining issues. We need not belabor the remaining issues. First, trial counsel’s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Eyre. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on Essay this record that trial counsel’s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. Security: History. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant’s argument that the of Leadership judge considered improper factors in A Brief History sentencing is without merit.
The defendant contends that Spinetto should not have been given the opportunity to of Leadership Essay give ?a community impact statement,? speaking about his loss of limb after being run over by a drunk driver over will soft rains, thirty years prior, and making a plea for the judge to keep the defendant from injuring other people. Although the judge briefly mentioned Spinetto’s community impact statement in her sentencing remarks, it is clear that the Model of Leadership Essay defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. Communication. Thus, noting that there was no objection below, we conclude that there was no substantial risk of a miscarriage of justice. SIKORA, J. (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and the judge’s proper instructions permitted the jury to of Leadership find that the defendant had driven under the influence of alcohol on the public roads leading to the pier. Wedding Speeches. Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to resolve the Essay ?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 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 precedent restrictively construing the statutory terms ?way? and ?place.?
As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and the need for examination of the underlying case law.2. Significant facts. The language of the statute relevant to communication our concern was last revised in Model of Leadership 1961, see St.1961, c. There Will Soft Rains. 347, to provide the following: ?Whoever, upon any way or in Model of Leadership any place to Essay about Of The Thou See which the public has a right of access, or upon of Leadership any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle … while. under the influence of intoxicating liquor … shall be punished….? 3. The opinion of the court describes the location, the access roads, the ray bradbury there will come soft gate, and signage related to the pier. Ante at 833-835, 927 N.E.2d at 499-501. Of Leadership. Four important and Essay about Time Thou, independent circumstances of the use of the pier emerge as well from the evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to a terminal at of Leadership Essay the edge of the pier from sister speeches, which they could walk across it.
An instructional sailing club conducted a program for Model of Leadership children from the pier; their parents and friends would observe their. races from it. The pier contained benches on mangrove fsa which pedestrian visitors could rest. The members of the public properly on the pier and Model, endangered by the defendant’s driving were pedestrians. Additionally, the evidence permitted the jury to make the following findings about the defendant’s conduct. He drove his pickup truck at Essay about Mayst See a high speed onto the pier; got out and urinated onto of Leadership, 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 Essay Security: History the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law. A sensible and direct application of the words of the statute to the circumstances of the pier and the actions of the of Leadership defendant would appear to make him punishable. However, the Essay about Year Thou See interpretative overlay of the following cases has required that the ?way? or ?place? in Essay question be one of public ?access? by ?motor vehicle.?
Commonwealth v. Mangrove Fsa. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to affirm the conviction of the Model defendant, not on the basis of his extraordinary conduct on the pier, but rather on the basis of his inferable driving down separate roadways. The original act punished simply operation under the influence ?on any public way or private way laid out under authority of law.? St.1906, c. 412, ? 4. It made no reference to operation in a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for sister speeches the protection of Essay travellers on highways,? and Essay, therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E.
829 (1926) (movement of car for Model several feet by mere shifting of gear and without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E. 758 (1927) (the statute ?was intended to regulate the mangrove fsa use of of Leadership Essay motor vehicles upon ways?). In 1928, the Legislature rewrote the entire provision. Its opening main clause now declared, ?Whoever upon any way, or in any place to which the public has a right of access, operates a motor vehicle … while under the mangrove fsa influence of intoxicating liquor … shall be punished …? (emphasis supplied). G.L. c. 90, ? 24, as appearing in St.1928, c. 281. Thus the of Leadership notion of statutory protection for Essay Security: A Brief highway travelers or motorists took hold in the version of the act predating any reference to Essay operation in a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the concept of a ?place? as the site of operating under the 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 which the public ha[d] a right of access? because no general public easement existed over it, even though the owner of the private way had permitted use of it by members of the about Social A Brief History public as business invitees or business licensees to a nearby restaurant and a market building. The court reasoned that the canon of strict construction of penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the Model 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. Wedding Speeches. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the Model of Leadership Essay 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 mangrove fsa defendant’s operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owner’s permission did not involve a ?place to Model which the members of the public [have] access as invitees or licensees? because the jane eyre feminism owner had never consented to such entry. Commonwealth v. Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 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. ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to address the Model problem of accidents in mangrove fsa places ?such as public parking lots or chain store parking lots.? ? Ibid. In its last assessment of this portion of the act in Model of Leadership 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and feminism, ?no trespassing? signs blocked entry onto the field.
Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 638, 550 N.E.2d 138. 4. The issue.
None of the cases appears to have addressed the applicability of the statute to places to which members of the public have access as pedestrian invitees or licensees. For the of Leadership following reasons, a continuation of the forms unexamined assumption that the of Leadership Essay term ?access? in the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by jane eyre its language and contradicted by its safety purpose. The precise language of the act is the first source of insight into its meaning and legislative intent. Model Essay. 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 there will come any place? accessible to members of the public as invitees or licensees. Essay. The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the generality of the intended ?place.? The Legislature did not confine the roles of invitees or licensees to persons conveyed by motor vehicles. It.
chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of ray bradbury come rains 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 Model of Leadership, a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out that the act’s penal character requires strict interpretation. Forms Communication. See Commonwealth v. Essay. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at jane 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute’s meaning?); Commonwealth v. Callahan, 405 Mass. at of Leadership 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in Essay Time Mayst the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the of Leadership Essay critical assumption of the law’s limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of ray bradbury will come lenity gives the defendant the benefit of a plausible ambiguity. Of Leadership. It ?does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass.
647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Forms Of Written. Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in a discussion of the scope of the act. Of Leadership Essay. One is that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. 90, ? 24G [ a ], against the defendant’s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislature’s addition of the word ?place? in 1928 meant something more than a ?way.? Both the statutory definition of forms of written ?way,?
G.L. c. Of Leadership Essay. 90, ? 1, supra at note 4, and the general ordinary meaning depict an artery supporting some degree of traffic or movement. By contrast, a ?place? denotes a far more generic location unrestricted to the conveyance of traffic. Social Security: History. 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 term ?place? by of Leadership Essay the Legislature expanded the diameter of the statute beyond the focus of the Essay Year Thou Mayst See early decisions on protection of highway travellers. Other standards of Essay interpretation forbid courts to jane add language to the terms chosen by Model of Leadership the Legislature. Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to jane feminism a statute that the Legislature did not put there, either by inadvertent omission or by design?). Of Leadership. See 1010 Memorial Drive Tenants Corp. v. Fire Chief of Cambridge, 424 Mass.
661, 668, 677 N.E.2d 219 (1997) (Greaney, J., dissenting) (same). Here the current interpretation effectively adds the phrase ?by motor vehicle? to the Legislature’s words ?any place to which the public has a right of access, … or … any place to which members of the public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of mangrove fsa Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for the protection of Essay members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways. It excludes from the protection of the statute members of the public least expecting, and ray bradbury there will come soft, most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in this case would be located in places of insufficient public access for protection against impaired drivers because they entered them on foot.
That interpretation opens a substantial gap in the coverage of the act. It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and status of his endangered or injured victim. Solutions. Model Of Leadership Essay. A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. Eyre. The decisions have fallen behind the statute. The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the Model momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator’s use of public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here. Within the judiciary the Supreme Judicial Court could reconsider the present construction said by the court in there will come soft George to have evolved without discussion.
Finally, and Model, perhaps ideally, the Legislature could further amend the Essay about Social A Brief History statute to extend its reach unmistakably to ?any place in which the public has a right of access, or … any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the exhibits. 2. The defendant testified that after leaving work at 4:00 p.m., he drove to Model of Leadership Charlestown, picked up a friend, and continued to drive to the Charlestown Pier. He then drove in traffic on public streets leading to the Navy Yard and Pier 4. As he approached the pier, he had to ?race up and pass? one car. Essay About Social History. He then drove up Terry Ring Way to a closed double swinging gate. As the Model of Leadership Essay defendant moved for a required finding of not guilty at the close of the about That Time Of The Year Mayst Commonwealth’s case on the public way question, we do not consider the defendant’s testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the baseball field was not, as a matter of law, a public way.?
Id. at 636, 550 N.E.2d 138. 4. The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and overturned the Model of Leadership Essay car while trying to leave the forms communication field. In the Model Essay instant case, in contrast, the evidence and That Of The, the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the Model influence on public roads prior to will come rains his arrival at of Leadership the pier. 5. We recognize that the Commonwealth ignored this obvious alternative in mangrove fsa arguing its case to the jury. Nonetheless, as explained below, the judge’s instructions and Model Essay, the proof offered adequately presented the issue for the jury’s consideration. 6. The passenger left the car soon after they were confronted at Social A Brief History the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination.
8. Model Essay. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendant’s prior record, having considered the mitigating information and mangrove fsa, the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the Model prosecutor in the case and speeches, 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. Model Of Leadership. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988). Commonwealth v. Sister Speeches. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited.
That limitation, however, does not bar the court from useful observations in dicta about the continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to of Leadership pay rent upon a nonresidential tenant independently of the landlord’s 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 sister wedding 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 Model of Leadership Essay, the subsequent adoption of ray bradbury there rains that view by Model the Supreme Judicial Court, S.C., 442 Mass. 423, 440-449, 813 N.E.2d 516 (2004). 2. Mangrove Fsa. As discussed below, the Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. Model Of Leadership. 90, ? 24(1)( a )(1), as appearing in St.1994, c. 25, ? 3, and by Essay Social Security: A Brief St.2003, c. Model Essay. 28, ? 1. 4. In decisions addressing the sister meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of that term by G.L. Of Leadership Essay. c. Essay About Social History. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to of Leadership Essay public use, or way under the control of park commissioners or body having like powers.? Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and Essay That Time See, abutting houses or businesses.?
Ante at of Leadership 833, 927 N.E.2d at 499, quoting from Commonwealth v. Social. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). 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. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY. Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on of Leadership Essay this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.
This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Forms Of Written. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of of Leadership Essay counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in the Superior Court Department on January 26, 2005. The case was tried before Howard J. Whitehead, J. James P. Forms Communication. McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for Model Essay the Commonwealth.
Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. 90, § 24(1)(a)(1). 1 His principal issue focuses on the meaning of “operation” under that statute. Essay About Social. We affirm. 1. Operation of the motor vehicle. A. Operation as matter of law.
At trial, the Commonwealth pursued only one theory: that the Model of Leadership Essay defendant, who was under the influence of intoxicating liquor and there come soft rains, was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the engine on. Essay. There was no evidence from mangrove fsa, which the jury could infer that the defendant drove his car drunk before getting behind the wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged.
2 The issue whether a defendant who places the key in the ignition and turns the electricity on without starting the Model of Leadership Essay engine may be found to be “operating” the vehicle for Essay A Brief History purposes of G.L. c. 90, § 24, is one of first impression in Massachusetts. 3. To define “operation” we must look to the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the Essay motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation).
Under the Uski definition, turning the key in the ignition to the “on” setting could be found to be part of a sequence that would set the vehicle’s engine in motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. The purpose of G.L. Sister. c. 90, § 24, is to “protect the public from intoxicated drivers,” Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by of Leadership Essay “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sister. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from Essay, State v. Essay About A Brief History. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf.
State v. Essay. Haight, 279 Conn. 546, 554-555 (2006), quoting from forms of written, State v. Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the movement of Model of Leadership a motor vehicle while intoxicated…”). Even an intoxicated person who is sleeping behind the wheel is dangerous because “that person may awaken and decide to drive while still under the influence.” State v. Kelton, 168 Vt. 629, 630 (1998). 6. In sum, applying the Essay about Mayst See Uski definition to Essay the facts before us, we conclude that, as matter of Essay Time Of The Thou See law, the evidence that the defendant, who was found in the passenger’s seat, turned the ignition key–an act which the Essay jury could have found to be the first step in a sequence to mangrove fsa set in motion the motive power of the vehicle–was sufficient to permit the jury to conclude that he “operated” the motor vehicle.
See also State v. Model Essay. Haight, 279 Conn. at there come rains 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will “set in motion the motive power of the vehicle”) (citation omitted). 7, 8. We are unpersuaded by the defendant’s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an engine be engaged and as meaning that turning the key to 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 Essay car would only draw power from the battery and thus neither starts the engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the defendant is correct and that turning the key to the “on” position does not engage the engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. c. Essay About Time See. 90, § 24, “merely because it is immovable due to of Leadership Essay road or other conditions not involving the vehicle itself.” Id. at Essay about That Of The Year Thou 184. Applying the Model Essay 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 mangrove fsa 183-184. In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the jury instructions were inappropriate. Model Of Leadership. The judge’s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant’s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the driver’s seat with a key turned in the ignition compelled a finding of operation.
Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. Forms Communication. 230, 234 (1990). 11. B. Sufficiency of the evidence. The defendant, who does not challenge being under the influence of intoxicating liquor 12 or the fact that the vehicle was on a public way, 13 argues on Model of Leadership appeal that the about Year Thou Mayst See Commonwealth failed to present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. c. Model. 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. Jane Eyre. We consider “whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the Model Essay contrary evidence presented by the defendant, is sufficient… to permit the jury to infer the existence of the sister essential elements of the crime charged…” beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to the Commonwealth shows that the defendant was found asleep in the driver’s seat “slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.” The defendant’s feet were “right in of Leadership front of him.” The vehicle’s dashboard was illuminated.
The key was in the ignition and had been turned to feminism the “on” position so that the “energy to the vehicle was on,” but the Model engine itself was off and “[t]he vehicle was not running.” The police officer had to “physically turn the about That Mayst ignition back” in order to remove the Model of Leadership key. The police did not observe anyone else in the van at the time of arrest. Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the driver’s seat of the vehicle, put a key in the ignition and turned it to the “on” position. See Commonwealth v. Cabral, 77 Mass.App.Ct. Jane Feminism. 909, 909 (2010) (“Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI”), citing Commonwealth v. Petersen, 67 Mass.App.Ct. Model Of Leadership. 49, 52 (2006), and Year Thou Mayst See, 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 defendant cites testimony by Model the defendant and the arresting officer that the defendant, upon about That Of The Year Thou Mayst being awakened by the police officer, told the officer that the officer did not have the Essay vehicle’s keys. The defendant testified that, after he moved to the driver’s seat and began eating his food, he did not remember what happened until the police officer woke him up.
The jury, however, could have found that the defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of not guilty. Mangrove Fsa. See Commonwealth v. Pike, 430 Mass. Essay. 317, 323-324 (1999). Second, the defendant points to the testimony of his friend that the friend left the communication defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the vehicle. Model Of Leadership Essay. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into the driver’s seat, picked up the key and put it in the ignition when he moved to the driver’s seat. 2. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the mangrove fsa evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree.
The prosecutor’s argument disputing the defendant’s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel’s argument that implied such a conspiracy. See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). We also conclude that the Essay prosecutor’s statement that the defense witness’s testimony corroborated the officers’ testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was “improperly muzzled” at trial because he was not permitted to testify that he intended to speeches sleep overnight in the van so that he could go to court in Gloucester the next day.
The defendant, however, was permitted to elicit testimony from the of Leadership defendant’s friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorney’s strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the defendant moved to replace his attorney, and jane feminism, the judge denied the motion.
The record reflects that as soon as the judge became aware of of Leadership a conflict between the defendant and his counsel, the defendant was provided an opportunity to explain his reasons for wanting to remove his attorney. The judge did not abuse his discretion in denying the defendant’s motion where (1) this trial counsel was the defendant’s third attorney; (2) the case was two years old; (3) although the ray bradbury there soft defendant was upset with his attorney for arguing a motion for a new trial on his behalf, but without the Model Essay defendant’s presence, the of written communication defendant’s presence would not have affected the outcome of that motion for a new trial; and (4) the of Leadership defendant merely complained of forms of written 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. Model Essay. The defendant argues that the judge abused his discretion by refusing to remove two jurors for cause. There Soft. We disagree. With respect to each of the complained-of jurors, the judge dispelled any concerns about the of Leadership juror’s bias through follow-up questioning, in which the jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the there will rains officer’s testimony was challenged.
A trial judge is afforded “a large degree of discretion” in the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Of Leadership. Vann Long, 419 Mass. Essay About A Brief History. 798, 808 (1995). Model Of Leadership Essay. “Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the ray bradbury will come soft rains judge abused his discretion by empanelling the Model of Leadership Essay juror unless juror prejudice is manifest.” Commonwealth v. Seabrooks, supra at 443. Mangrove Fsa. 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. Latimore, 378 Mass. at 676-678, we conclude that the Model defendant’s contention is without merit.
First, there was ample evidence that the defendant was the person who had been convicted of similar offenses once in 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (“[registry of motor vehicles] records, which contained more particularized identifying information…, also reflected the offenses and the fact that they were the defendant’s”). See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. 368, 372 (2003).
Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5 (2010). Finally, the jane judge’s instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the Model of Leadership jury that the documents in question were OUI convictions and reminded the forms communication jury that the of Leadership Essay 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 defendant’s contention that he was denied his right to speedy trial. Eyre Feminism. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.
910 (1979), “a criminal defendant who is not brought to trial within one year of the return day in the court in Model which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the mangrove fsa delay.” Commonwealth v. Of Leadership. Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant’s trial began on January 23, 2007, 686 days later. “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in rule 36(b)(2), or by Essay Social Security: A Brief a showing that the Model defendant acquiesced in, was responsible for, or benefited from the delay.” Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Of the there soft rains 686 days between those two dates, the Model docket sheet and documents filed in support or opposition to the defendant’s motion to of written communication dismiss show that many days are excluded from the Model Essay calculation. Sister Wedding Speeches. Due to jointly agreed upon continuances by Model of Leadership the parties, at least 117 days are excluded. Ray Bradbury There Come Soft Rains. 15 See Barry v. Model Essay. Commonwealth, 390 Mass. 285, 298 (1983).
There were 185 days when the defendant was unavailable while on trial on That Time Year another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the defendant’s motion to dismiss, which was filed on Model of Leadership December 13, 2006, and decided on January 10, 2007, also tolled the running of the rule 36 time for Social Security: twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at 505 n. Model Of Leadership Essay. 4. In total there were at about A Brief History least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to of Leadership Essay count against the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the motion to dismiss is eyre feminism, affirmed. 18. 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part: “Whoever, upon any way or in of Leadership any place to which the eyre 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 Model of Leadership section one of chapter ninety-four C, or the vapors of glue shall be punished…. “If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program… because of a like offense three times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years….” 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct.
317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. 566, 568 (1926). 3. If the evidence shows that a defendant was seated in the driver’s seat with the mangrove fsa engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Of Leadership Essay. Sudderth, supra (sufficient evidence of operation where police found defendant “seated in the driver’s seat with the engine running and a key in the ignition”); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Eyre Feminism. Cf. Of Leadership Essay. 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 Essay about That Time Of The Thou Mayst operation).
4. In Commonwealth v. Uski, 263 Mass. at of Leadership 23-24, there was conflicting testimony about whether the defendant turned on the motor or simply placed the key in the ignition. 5. Will Soft. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (“The defendant’s intention after occupying the driver’s seat is not an element of the of Leadership Essay 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 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 mangrove fsa 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 Essay automobile and driven away”). 7. Cf. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of mangrove fsa operation similar to the Uski definition in holding that the defendant did not operate the vehicle “[b]ecause the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment” of the Model of Leadership vehicle); Propst v. Commonwealth, 24 Va.App.
791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the position of the Essay Time Year Thou key in Essay 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. Time Year. c. 90, § 24: inserting a key in the ignition without turning it and without engaging the motor or the vehicle’s power; using an electronic remote starting device to start the engine of the car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the of Leadership car; or putting the key in the ignition to engage either the electricity or the motor before going to eyre sleep in a seat other than the driver’s seat. 9. In the absence of any evidence below regarding whether the key, when turned in the ignition to the on position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the jury instructions is the following: “The first element which the Commonwealth must prove is that the defendant operates a motor vehicle. Essay. The expression ‘operation of mangrove fsa a motor vehicle’ covers not only Model of Leadership all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to set the vehicle in Essay Security: A Brief History motion. To operate a motor vehicle, it is not necessary that the engine be running.
The intentional as opposed to accidental manipulation of Model Essay any mechanical part of the 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 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 sister vehicle. The Commonwealth need not prove the defendant’s intention after occupying the driver’s seat.” 11. We also reject the defendant’s argument that “a stopped engine instruction” was required because the engine was stopped, and the stop was not incidental to Model of Leadership the operation of the vehicle.
See Commonwealth v. Cavallaro, 25 Mass.App.Ct. 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. Essay About Security: History. c. 90, § 24, includes “at least ordinary stops upon the highway, and Model of Leadership Essay, such stops are to be regarded as fairly incidental to its operation”). Such an instruction was inappropriate here where the Commonwealth’s theory was that the defendant was operating the ray bradbury soft rains vehicle by putting the key in the ignition and turning it. This theory did not depend on Model Essay any previous operation of the Essay Time Mayst vehicle. 12. The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and was “highly intoxicated.” Furthermore, the arresting officer reported that the defendant smelled very strongly of Model of Leadership Essay alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on the street in front of a restaurant. 14. The defendant also argues that the Commonwealth failed to meet its burden by not introducing sufficient evidence that the mangrove fsa defendant’s 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 of Leadership Essay, multiple people claimed that they were driving the car at there the time of the accident). Boothby, however, is distinguishable from the current case because, here, the police only found one possible operator at the scene and the present case does not involve a confession by the defendant. 15. This figure includes (1) ninety-one days between March 30, 2005 (the first scheduled pretrial hearing date), and Model of Leadership, June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing). 16. The defendant’s trial on an unrelated charge began on sister wedding speeches 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 Model counsel between the bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the requirement for 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 wedding, se motion to dismiss under G.L. c. 276, § 35. Assuming, arguendo, that the judge denied the motion–there is Model of Leadership, no record of such ruling–and that this issue is properly before this court, we affirm. General Laws c. 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of trial and, thus, does not fall within the statute. A District Court jury found the there will come soft defendant guilty of motor vehicle homicide by operation under the of Leadership influence of intoxicating liquor and negligent operation (in violation of G.L. Essay Time Mayst. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[a]). 75 Mass. App. Ct. 643.
Appeals Court of Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Brennan, Dalton, for the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for Model the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass.
App. Ct. 644] A District Court jury found the about Social defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. Essay. c. 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[a]). The defendant, who is African-American, appeals upon claims that (1) the trial judge improperly allowed the Commonwealth’s peremptory challenge of the only African-American in of written communication the venire; (2) the trial judge improperly admitted evidence of the defendant’s 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 reversible error. We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of Model of Leadership Essay her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant’s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to forms communication that evidence.
Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the of Leadership defendant with negligent operation of a motor vehicle in violation of G.L. c. 90, § 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of G.L. c. Of Written Communication. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the Commonwealth’s motion to amend the of Leadership Essay June 1 complaint to add an wedding speeches, alternate theory of intoxication, a 0.08 percent “per se” violation of the Model Essay motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. Wedding. 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 Model Essay defendant to two and one-half years in the house of correction on the motor vehicle homicide charge and a consecutive sentence of two years in the house of correction on the negligent operation charge. In December of mangrove fsa 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 Essay motion. Ray Bradbury There Will Soft. The allowance of that motion is not at issue in this appeal.3. Background.
The evidence at of Leadership Essay trial included the sister speeches following. On November 27, 2003, at approximately 8:30 P.M., the defendant’s jeep and the victim’s vehicle collided at an intersection in New Bedford. Four people witnessed the collision, and each of Model of Leadership them testified at trial. According to the witnesses, the defendant’s jeep went through a stop sign at a high rate of feminism speed and struck the victim’s vehicle. Essay. A New Bedford police officer arriving at the scene after the jane eyre accident saw the defendant pacing back and forth in an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from Model, multiple traumatic injuries. Paramedics took the defendant to the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash.
She analyzed the damage to the vehicles and made numerous measurements of the crash scene. Based on her investigation, the expert concluded that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass. App. Ct.
646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. Forms. According to the officers, the 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 Essay defendant’s demeanor changed when one of the officers notified him of the victim’s death. While at Social the hospital, the defendant complained of pain in Model of Leadership Essay his chest. In response to his complaint, hospital staff drew a blood sample from him and analyzed it. Jane Feminism. The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of of Leadership Essay .15 to .16.
Discussion. 1. Communication. Peremptory challenge. Jury selection proceeded over two days. On the first day, the judge called juror to Model side bar for forms further questions. Model Of Leadership Essay. The juror told the judge that she was diabetic.
The judge assured her that the disease would not be a problem. Wedding Speeches. The juror noted also that her son had faced criminal charges in New Bedford District Court. Of Leadership Essay. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in advance of the parties’ challenges. The next day, the of written communication Commonwealth invoked one of its peremptory challenges to exclude juror.
The judge noted that juror nineteen was the only African-American in the jury pool from either day. She asked the Commonwealth to explain the Model of Leadership Essay challenge. In response, the prosecutor gave two reasons: (1) the juror’s speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and (2) the prosecutor’s discomfort caused by the juror’s fixed stare at him during empanelment.5 The judge then determined that the prosecutor’s explanation was not race-based. [75 Mass. App. Ct. 647] Defense counsel asked for the judge’s impression of juror nineteen. The judge stated that the juror had “somewhat of wedding speeches a halting speech pattern” and of Leadership, was “not incredibly articulate but … not inarticulate either.” The judge did not, however, “associate [the juror's speech] with slowness mentally.” The prosecutor explained that he believed that juror nineteen’s mental acuity was similar to that of another juror whom the about judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealth’s peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the Model of Leadership jury had entered the court room, the judge commented further on the Commonwealth’s peremptory challenge of juror nineteen.
She stated that, after the previous day’s discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and wedding speeches, that she “wanted to put some more … findings on the record.” She recounted that she had requested an of Leadership, explanation for the peremptory challenge, and she repeated the prosecutor’s explanation. She noted also that the applicable case law requires “a two prong analysis. One having to do with the adequacy of the Commonwealth’s position once having been questioned about the wedding speeches reason for the challenge and then the genuineness of that.” Although the prosecutor had not mentioned the criminal. [75 Mass. App. Model. Ct. 648] history of Of The Thou See juror nineteen’s son when he had offered his explanation for the challenge, the judge referred to Model of Leadership Essay it in her findings.8 The judge concluded her findings with the statement that “I find … the Commonwealth’s explanation both adequate and genuine, which is why I allowed the challenges to mangrove fsa stand.” Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the of Leadership use of peremptory challenges to Essay A Brief History exclude prospective jurors on the basis of race. Of Leadership. 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 about Security: A Brief History, proper.” Commonwealth v. Smith, 450 Mass.
395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct. Of Leadership Essay. 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 come rains, a likelihood they are being excluded from the Model jury solely by reason of their group membership.” Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. Of Written. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to Model Essay the challenge or the trial judge, sua sponte, may raise the issue of the eyre feminism propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). When “the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of discrimination has been made.” Id. at 463 n. 5, 788 N.E.2d 968. Once the prima facie case of of Leadership discrimination has been made, the proponent of the peremptory challenge must provide an explanation which “pertain[s] to the individual qualities of the sister wedding speeches prospective juror and not to that juror’s group association.” Commonwealth v. Model Of Leadership Essay. Soares, supra at 491, 387 N.E.2d 499.
If the proponent’s. [75 Mass. App. Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). The judge must then “make an independent evaluation of the [proponent's] reasons and … determine specifically whether the explanation was bona fide or a pretext.” Ibid. “In other words, the mangrove fsa judge must decide whether the of Leadership explanation is both `adequate’ and `genuine.’” Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Of Written. Garrey, 436 Mass. Of Leadership Essay. 422, 428, 765 N.E.2d 725 (2002). Communication. “[I]t is imperative that the of Leadership record explicitly contain the judge’s separate findings as to Social Security: A Brief History 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 peremptory challenge. She appropriately requested an explanation from the Essay 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. Jane. 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 of Leadership, because she had stared at him in Essay about That Of The Mayst a discomforting manner. The judge received defense counsel’s opposing response. She then stated that, although the juror had “a halting speech pattern,” she did not find the juror mentally slow.
However, the judge concluded that the of Leadership Essay prosecutor had not misused the challenge and allowed it. It was not until the next day that the judge explicitly found the prosecutor’s explanation to of written be adequate and genuine. The judge’s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and Model Essay, timely explanation for allowance required by the line of cases culminating in Commonwealth v. Benoit, supra. As in Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor’s explanation of the peremptory challenge. See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor’s peremptory challenge where judge. [75 Mass. App. Ct. 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 forms genuine reason for the challenge”); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant’s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and Model, genuineness of sister speeches reason for peremptory challenge).
In sum, the record contains references to three possible grounds for disqualification of the juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney’s office.9 The judge did not address. the ground of staring.10 She rejected the Essay suspected slowness. She introduced, a day later, the mangrove fsa experience of the son, a potentially serious ground but one never invoked by the prosecutor in support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the specific, clear findings upon adequacy and genuineness required by the cases to sustain the peremptory challenge. In particular, the of Leadership Essay judge did not find either of the prosecution’s grounds adequate, i.e., “personal to the juror and not based on the juror’s group affiliation” and “related to the particular case being tried,” however genuine or bona fide the of written offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is demanding. Of Leadership. The precedents require reversal of the sister wedding speeches convictions. 2. Evidence of blood alcohol content.
The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of operation under the Model Essay influence, the per se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory.
At the about Security: beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against Essay the defendant. She made no reference to alternate theories of operation under the influence. Essay About Social A Brief. During the trial, the Commonwealth introduced evidence of the defendant’s blood alcohol content but offered no expert testimony to Model Essay 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 mangrove fsa, instruction on of Leadership the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: “The law says that if the percentage of alcohol by weight in the defendant’s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at the time.” For reasons discussed below, the Essay That Of The Mayst See instruction was erroneous.
The defendant did not object to Model Essay the blood test evidence, the prosecutor’s reference to it in his summation, or the judge’s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, § 24G, the motor vehicle homicide statute, and G.L. c. 90, § 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of intoxication. St.2003, c. 28, §§ 1, 21, 22. Wedding. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had “a percentage, by Model of Leadership weight, of alcohol in [his] blood of eight one-hundredths or greater.” G.L. c. Forms. 90, § 24G(a). Prior to the amendments, the statutes allowed the permissible inference of of Leadership intoxication when the defendant had a blood alcohol content of .08 percent or greater. Commonwealth v. Feminism. 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. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Colturi, supra, the Model Essay 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. Come Soft Rains. 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 of Leadership Essay its relationship to intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by the 2003 amendments, the ray bradbury will jury would be left to guess at its meaning.” Ibid. As for trials where the Commonwealth relies on both theories, the of Leadership Essay 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 admission of breathalyzer test results without expert testimony establishing the significance of the test level to the degree of intoxication or impairment of the eyre feminism defendant. In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the Model OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the ray bradbury will come rains 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 Model of Leadership Essay the results of breathalyzer tests. Communication. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant’s objection, admission of the of Leadership Essay results required reversal. Id. at 664, 885 N.E.2d 164. In this case, the complaint charged both theories.
The judge admitted evidence of the defendant’s blood alcohol content without expert testimony to explain its relationship to Social intoxication. The judge did not instruct the jury on the per se theory. Furthermore, the of Leadership Essay judge erroneously instructed the jury on the permissible inference of intoxication eliminated by the 2003 amendments. See. [75 Mass. Feminism. App. Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. Of Leadership. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Since the forms defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of Model 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. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002);
Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth’s evidence of intoxication was strong. About A Brief History. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victim’s vehicle. A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection.
The officers who interviewed the of Leadership defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to wedding speeches consumption of Essay forty ounces of beer earlier in the evening. However, the laboratory supervisor’s testimony that the defendant had a blood alcohol content between .15 and ray bradbury there will rains, .16 percent may have been the most compelling evidence of intoxication. Without it, the Model of Leadership Essay Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Of Written. Here, as in Hubert, police testimony about the defendant’s signs of of Leadership Essay intoxication differed. Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and about Social Security:, 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. Model. 654]
Conclusion.14,15 For the foregoing reasons we reverse the judgments and set aside the verdicts. The case is remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. Time Year See. In addition to the negligent operation charge, the of Leadership Essay February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G.L. Mangrove Fsa. c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by negligent operation (in violation of G.L. c. 90, § 24G[a]), the Model Essay Commonwealth nol prossed the motor vehicle homicide charge from the first complaint. 2. Under G.L. c. 90, § 24G(a), the Commonwealth may use either of two theories to prove operation under the influence: (1) operation “with a percent by weight, of alcohol in [the] blood of Social A Brief History eight one-hundredths or greater, or  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. Model Essay. Hubert, 71 Mass.App.Ct. Jane Eyre. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. 1009, 902 N.E.2d 368 (2009). Model Of Leadership Essay. Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory. 3. Jane. In April of 2007, after a hearing, the trial judge allowed the Essay Commonwealth’s motion to about Time Of The Year Thou Mayst file a late notice of Essay appeal from the grant of the defendant’s motion for ray bradbury there soft rains relief from an of Leadership, unlawful sentence.
The Commonwealth’s appeal has not entered in this court. Mangrove Fsa. 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 defendant’s jeep had struck a vehicle parked on the side of the Model of Leadership Essay road prior to the collision with the victim’s vehicle. 5. In its entirety, the prosecutor’s explanation was: “Judge, she appears slow to me at side-bar in her speech and mannerisms and That Time Thou Mayst See, while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at me, staring me down while we were at the side-bar; and it bothered me. But I do find that she’s slow at side-bar speaking with her, in of Leadership Essay her speech; and I’m concerned that this is Essay Of The Year Thou Mayst, a three or four day trial, a lot of witnesses; and I’m concerned about her ability to try the evidence.” 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the of Leadership Essay judge asked the prosecutor why he had used another peremptory challenge on sister wedding 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 Essay, the judge allowed the challenge.
7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the Essay Social Security: History judge stated that she “look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of Model a peremptory challenge being used to exclude members of a [discrete] group….” The reference (jumbled in mangrove fsa transcription) most probably was the Maldonado decision. 8. Model. The judge’s reference to the criminal history of juror nineteen’s son was as follows: “I would also add that it was known to all of sister wedding speeches us that [juror nineteen] had had a son who had apparently a criminal matter in Essay this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney’s office and apparently came up…. [A]nd I don’t remember the case per se but she spoke about it. It apparently just happened last fall.”
The judge went on to say that she understood the Commonwealth’s concern “whether she could perform in a truly objective manner” because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of that specific concern by the prosecutor. 9. As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the judge referred to the experience of juror nineteen’s son in the New Bedford District Court. See note 8, supra. Of Written. The prosecutor did not refer to the criminal history of the Model Essay juror’s son as justification for his peremptory challenge.
A judge may not supply her own reasons to justify a prosecutor’s peremptory challenge. See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct.
636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of success. “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s `gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.” Commonwealth v. Maldonado, 439 Mass. at 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 communication any challenge of either the Commonwealth or a defendant. 12. The charge conference and instructions to the jury in the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the Hubert decision in May 2008. Therefore the judge and trial counsel did not have the benefit of those interpretations of the 2003 amendments. 13. In Commonwealth v. Model Of Leadership Essay. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the sister wedding speeches issue so that the standard of Essay review was the presence of prejudicial error.
Here we have reviewed the issue under the less demanding standard of substantial risk and found the error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the victim’s mother at the defendant as the jurors left the courtroom on the first day of trial, and communication, (2) the of Leadership Essay presence of a makeshift memorial to the victim at communication the accident scene during the jury’s view of the site. The claim of calculated impropriety by the prosecutor arises from testimony of Model two police officers that they told the Essay about That Year Mayst See defendant that he had “killed” the of Leadership Essay victim. The defendant asserts that the jane feminism prosecutor intended that the officers testify in this manner, in violation of the judge’s decision on a motion in limine.
No evidence supports the view that the mother’s outburst or the of Leadership Essay accident site memorial overcame the judge’s instructions for eyre a verdict based strictly on the evidence. Model. The claim related to the officers’ use of the jane eyre feminism word “killed” fails also, because the Model of Leadership Essay judge gave immediate curative instructions. 15. About Of The Year Thou Mayst. The defendant presented no issue of a denial of the right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by of Leadership 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 driver’s license was suspended, and at mangrove fsa trial he testified that he knew he was suspended for Model Essay an operating under the influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED. Andrew S. Robinson, Asst.
Dist. Atty. (orally), Franklin County DA’s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Forms Of Written. Gilman. Panel SAUFLEY, C.J., and of Leadership, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the That Year Thou See sentence that the Model Essay court imposed on Gerald W. Gilman following his conviction at a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. Essay About That Time Of The Year. 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 Model Essay imprisonment required by the statute. The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that “all penalties and punishments shall be proportioned to about Time Year Thou See the offense.” Me.
Const. art. Model Of Leadership Essay. I, ? 9. ? 2 Gilman cross-appeals, contending that, in mangrove fsa addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the. court erred in admitting a certified record from the Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. Model Of Leadership Essay. 1354, 158 L.Ed.2d 177 (2004), and That Of The Year Mayst See, its progeny. ? 3 The State’s appeal is 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. P. 21(b). Because we agree with the Model State’s contention that the sentence imposed on Gilman was illegal, and will come, find no violation of Gilman’s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in Model dispute. On April 11, 2007, Gerald Gilman was stopped for forms of written communication speeding in the Town of New Sharon, three miles from of Leadership Essay, his home. He had not been drinking.
Gilman, a member of the local Elks Club, was returning from the eyre club’s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to Essay the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for mangrove fsa an operating under the influence (OUI) conviction. In fact, Gilman’s license had been revoked as a result of Model of Leadership multiple previous convictions, which included three convictions for ray bradbury come soft rains OUI within the previous ten years. A certified record from the Secretary of State, admitted at trial over Gilman’s objection, showed that he had been given proper notice of the Model revocation. ? 5 Gilman was indicted for 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. Forms Of Written Communication. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as “Tina’s Law,” provides that in that circumstance “the minimum fine . Of Leadership. . . is $1,000 and the minimum term of imprisonment is Essay about That Time Year, 2 years, neither of which may be suspended by the court.” 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. Essay. 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to dismiss the allegation of the aggravating factor of Essay about Social Security: A Brief his prior OUI convictions as a violation of Model his equal protection guarantees. Dismissal of the ray bradbury will soft allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for OUI. Model. 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 eyre Confrontation Clause would be violated by of Leadership Essay the admission of a certificate issued by sister speeches the Secretary of State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman’s motion for a judgment of acquittal, and took the ultimate issue of whether the Model of Leadership Essay State had met its burden of proof under advisement.
Gilman then filed a written. argument asking the jane court to revisit its earlier rejection of his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. The court heard argument and Model of Leadership Essay, 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 Essay Social court’s reasoning on the Confrontation Clause issue and Model of Leadership, again denied Gilman’s equal protection claim.
On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the court to jane feminism reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the Model State did not individually notify him that “Tina’s Law” increased the penalties if he were to be convicted of Time Of The Mayst See OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman’s due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the Model of Leadership Essay United States Department of Veterans Affairs, Gilman’s sister, and Gilman himself. At the mangrove fsa 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 Essay, conclusions: This Court concludes, after consideration of the mangrove fsa 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 Model of Leadership Essay December 11, the ray bradbury there come soft rains court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to Essay fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and forms of written, a $1000 fine. Model. See 17-A M.R.S. ? 1252-C (2009). The State orally moved the eyre feminism court to correct what it viewed as an illegal sentence pursuant to Model of Leadership M.R.Crim. P. 35(a);4 the motion was denied orally and later in a written order. This appeal and cross-appeal followed. A. Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of Essay History rights enjoyed by Maine citizens. Section 9 sets limits on the State’s power to punish: “Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” Me. Const. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at least two years.
29-A M.R.S. ? 2557-A(2)(D). Accordingly, the Essay court’s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilman’s individual circumstances, the mandatory sentence was disproportionate to his offense, and mangrove fsa, therefore the statute is unconstitutional in this instance.5 Gilman’s burden is significant, as “one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of “strong and Model of Leadership Essay, 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 mangrove fsa individual or because of the manner in which the sentence is Model, carried out, there was not enough information in this case for the trial court to reach that conclusion. State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is proportionate to the offense that Gilman committed, and (3) the about Social A Brief sentence imposed by Model of Leadership Essay the trial court was therefore illegal and. must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is not possible.
? 16 The plain language of section 9 requires that “punishments shall be proportioned to the offense.” Me. Const. art. I, ? 9 (emphasis added). It says nothing about the Essay about Social 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 Model same principles employed in the construction of statutory language hold true in the construction of a constitutional provision, we apply the plain language of the constitutional provision if the language is 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 of written communication, 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 of Leadership Essay 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 defendant’s conduct.7 Only in Essay Social Worthley did we refer to Model of Leadership the characteristics of the individual offender, and forms of written, then only to point out that we were not required in that case to decide whether individual characteristics could ever be a factor in of Leadership Essay the proportionality analysis. Wedding Speeches. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in its recent Eighth Amendment jurisprudence the of Leadership Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not. required an mangrove fsa, individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (“We have drawn the line of Model Essay required individualized sentencing at capital cases, and see no basis for extending it further.”). Regarding the mangrove fsa Federal Constitution, the First Circuit Court of Appeals noted:
There is no constitutional right, in non-capital cases, to of Leadership Essay individualized sentencing. Essay Of The Year. Legislatures are free to provide for mandatory sentences for particular offenses.. . . The mere fact that a sentence is mandatory and Model of Leadership Essay, severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by sister speeches our cases holding that the Legislature has the power to enact mandatory sentences. See State v. Model Of Leadership. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is eyre, a recognition that the Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is appropriate to Model Essay do so, subject only to the constitutional prohibition against punishment disproportionate to a given offense. The construction urged by Gilman would go far beyond what the language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature’s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant’s individual circumstances in finding that a mandatory sentence is disproportionate as applied to that person is wedding speeches, simply reinstatement by judicial declaration of a sentencing court’s ordinary discretion to weigh mitigating factors, and Essay, then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. Of Written. ? 1252-C(2). A court would then always have the sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the mandatory minimum sentence on the ground that the mandatory sentence is Model of Leadership Essay, disproportionate as applied in a particular case. We do not read article I, section 9 to Essay about That Year See render the Legislature’s authority to enact mandatory sentences a nullity.10.
? 21 Because we hold that the clause, “all penalties and of Leadership, punishments shall be proportioned to the offense,” means what its plain language says, and does not require consideration of the individual circumstances of each offender, the Essay about That Time Year Thou Mayst sentence imposed on Model 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 mangrove fsa, duty to uphold the State and Federal Constitutions,” and will “protect the individual from an Model Essay, unconstitutional invasion of his rights by the legislative . . . branch of government.” Dep’t of Corr. Forms Communication. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as “the voice of the sovereign people” in the area of crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of legislative concern. Essay. It is not the office of the judiciary to interpose constitutional limitations where none need be found.
Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to be avoided might then be a cruelty of ray bradbury will come soft rains constitutional dimensions. It seems to us that the interest of the legislature is paramount in the field of penology and the public safety. The legislature defines the Model of Leadership Essay contours of the jane feminism crime itself, and sets the limits for punishment. . . . Of Leadership. The underlying structure of the penal system is statutory; the coherence of the system is to be found in legislative direction. State v. King, 330 A.2d 124, 127-28 (Me. 1974); see State v. Wedding. Benner, 553 A.2d 219, 220 (Me.1989) (“The power of of Leadership Essay punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to Essay A Brief define a crime and ordain its punishment.” (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and unusual as whether it “is greatly disproportionate. . . and Model Essay, whether it offends prevailing notions of decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at sister wedding 376; whether it “shocks the conscience of the of Leadership Essay public, or our own respective or collective sense of fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is “inhuman or barbarous,” State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is “the voice of the sovereign people,” King, 330 A.2d at 127, and thus expresses the people’s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the collective conscience of the people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the judgment of the Legislature is the collective judgment of the people.
? 24 Gilman was convicted of a Class C crime, punishable by a maximum of five years imprisonment. See 17-A M.R.S. Jane Feminism. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of Essay two years, or forty percent of the maximum. 29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to mangrove fsa 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. Of Leadership. 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 of written, 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 Legislature had no rational basis for increasing his sentence for Model of Leadership operating after revocation because of his prior OUI convictions.
He acknowledges that in order to reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the come soft rains same argument was advanced and rejected. Model Of Leadership. 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 mangrove fsa imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and Model of Leadership Essay, we find that the rational relationship of prior OUI convictions to eyre feminism an enhanced sentence for Model of Leadership operating after revocation remains intact.
? 27 Gilman next contends, on the authority of mangrove fsa 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. See P.L. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 28 In Stade, we held that a defendant’s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. Model Essay. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to forms the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the Essay statute, the Governor signed it into jane eyre feminism law, and Gilman is of Leadership Essay, presumed to know what the mangrove fsa law is. See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911).
Contrary to Gilman’s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. Of Leadership Essay. ? 2557(2)(B)(2) (2005).12. E. Confrontation Clause. ? 29 Gilman finally contends that his Sixth Amendment right to confront the witnesses against him was violated when the Superior Court admitted, over his objection, a certified record from the Secretary of State stating that his privilege to operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the preceding ten years. Essay Social. As. with his equal protection challenge, Gilman acknowledges that he can prevail only Essay if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because “the certification served only to confirm the authenticity of the underlying records of the sister wedding Violations Bureau, which themselves contain only Model of Leadership 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 jane eyre Supreme Court’s decision in Melendez-Diaz v. Model Of Leadership. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the admission of a chemist’s certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although “documents kept in Essay Social the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . that is Model, not the forms case if the regularly conducted business activity is the production of evidence for Model of Leadership Essay use at trial.” Id. at mangrove fsa 2538, 174 L.Ed.2d at Model of Leadership Essay 328 (citation omitted). ? 31 We recently analyzed the forms of written communication impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. Of Leadership Essay. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman’s argument fails.
Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided: D. A person is guilty of a Class C crime if the person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. The minimum fine for Security: A Brief a Class C crime under this paragraph is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by of Leadership the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in any way that affects this case. Of Written Communication. P.L.
2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. Of Leadership 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. Mangrove Fsa. 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 . . Model Of Leadership Essay. . attorney for the state . . . About Time. made within one year after a sentence is of Leadership Essay, imposed, the justice or judge who imposed sentence may correct an Essay about Time Of The, illegal sentence or a sentence imposed in an illegal manner.” M.R.Crim. P. Model. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in Essay Social A Brief context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and Model of Leadership Essay, penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Social Security: Maine Constitution, unlike the United States Constitution, delineates the protections against Model of Leadership disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct.
2641, 171 L.Ed.2d 525, 538 (2008) (“The Eighth Amendment proscribes all excessive punishments, as well as cruel and wedding, unusual punishments that may or may not be excessive. . . . The Eighth Amendment’s protection . . Model Of Leadership Essay. . flows from the basic precept of justice that punishment for a crime should be graduated and Essay about That Of The See, proportioned to the offense.” (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (“In analyzing whether a sentence is cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to the offense and whether it offends prevailing notions of decency.”); State v. Of Leadership Essay. Frye, 390 A.2d 520, 521 (Me. 1978) (“A mandatory sentence is not cruel and Essay Social Security:, 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 of Leadership Essay 43 (“The interpretation of `cruel or unusual punishment’ also is informed by the requirement of proportionality.”). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. 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. Ray Bradbury There Will Soft Rains. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for Model robbery with a firearm not disproportionate to Essay History the offense); State v. 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 Essay short lobsters not unconstitutionally excessive and value of lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me.
1969) (holding five-day sentence imposed by court in its discretion for contemptuous “reprehensible conduct” not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of 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. Mangrove Fsa. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Model. 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 jane feminism possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the of Leadership Essay applicable statute does not specify a mandatory sentence, the mangrove fsa sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and finally determines whether any of the Model Essay 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 sister wedding, too harsh as applied, the Essay Maine Constitution gives the Governor the ray bradbury equitable power to “grant reprieves, commutations and pardons” in of Leadership Essay 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 That Of The Thou See hypothetical example of “a legislature making overtime parking a felony punishable by of Leadership life imprisonment.” Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. Of Written. ? 2557 was repealed and replaced by P.L. 2005, ch. 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. Model. ? 2557-A (2008)). The indictment against mangrove fsa Gilman alleged that his most recent OUI conviction occurred on Essay October 14, 2005.
Gautier’s conviction for being a felon in possession of about Time Of The Year Mayst a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to Model of Leadership the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant. Criminal No.
06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED.
Oscar Cruz, Jr., Timothy G. Essay Social History. Watkins, Federal Defender’s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Weinreb, United States Attorney’s Office, John A. Model. Wortmann, Jr., United States Attorney’s Office, Boston, MA, for United States of America. GERTNER, District Judge: TABLE OF CONTENTS. A. Whether Gautier’s 2001 Crime of Time Of The Year Thou Mayst See Resisting Arrest under Mass. Gen. 1. Of Leadership. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Whether the 1998 Juvenile Offenses Were Committed on Different. 2. Sister Wedding. Whether the Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and Model Essay, ammunition in the pocket of defendant Eddie Gautier (“Gautier”) one night in Roxbury.
The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by 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 mangrove fsa a firearm, pursuant to 18 U.S.C. § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and a resisting arrest charge from Model of Leadership Essay, 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the forms of written 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 of Leadership Essay penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions). I disagree.
In passing the ACCA, “Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of livelihood, and ray bradbury come soft, who, because they possess weapons, present at least a potential threat of harm to persons.” Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier’s criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for Essay 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 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. Sister Speeches. Second, and in of Leadership the alternative, court records were ambiguous on 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 Social A Brief, the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months’ incarceration, in effect the Model Guideline felon in jane possession sentence, and three years’ supervised release, with a number of special requirements. This memorandum reflects the factual and Model of Leadership Essay, legal bases for that sentence. On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. Communication. He decided to meet four friends who were out of Leadership Essay celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the about Of The Year Thou See Archdale Housing Project in an unmarked police car approached the group. One of Gautier’s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband.
The officers exited the car, badges displayed, and walked to Model of Leadership Cabrera. Cabrera then allegedly shouted “get the burner” (slang for jane eyre feminism gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier’s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and indicted on February 15, 2006, on one count of felon in possession of a firearm and Model Essay, one count of felon in possession of ammunition, both pursuant to mangrove fsa 18 U.S.C. § 922(g)(1). Subsequent to his arrest, he agreed to speak to federal agents and police investigators, admitted to possessing the gun, and divulged where it had come from. Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to Model Essay the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for Gautier sought a pre-plea Pre Sentence Report (“PSR”). When the pre-plea PSR concluded that an ACCA enhancement was required, the 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 keep it from a group of younger, intoxicated friends in a dangerous area of Boston.
The jury rejected his claim, convicting him of sister speeches 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 defendant’s objections to the presentence report. Of Leadership. On that date, I also raised sua sponte the issue of forms of written whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on Model of Leadership 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 mangrove fsa alternative findings concerning the two 1998 convictions, as well.
Gautier’s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to Model Essay the enhancement provision of the Armed Career Criminal Act. That statute provides: In the wedding case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of Model this title for jane eyre feminism 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). Gautier’s sentencing memorandum and Model of Leadership Essay, recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier’s conviction for resisting arrest may not be a “violent felony” under the Essay about That Year Thou See ACCA. Second, the of Leadership Essay government may have difficulty establishing, on of written communication 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 Gautier’s 2001 Crime of Resisting Arrest under Mass.
Gen. Laws Ch. Essay. 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 mangrove fsa, element the Model of Leadership Essay use, attempted use, or threatened use of forms of written physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Courts are obliged to of Leadership Essay apply a categorical approach to determining whether a criminal offense is speeches, a violent felony; that is, they look to Model of Leadership Essay 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 mangrove fsa determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge “may not hold a minitrial on the particular facts underlying the Model of Leadership Essay 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 Essay about That Thou See ascertain whether the conviction was for of Leadership Essay a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in Shepard v. About That Mayst. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that “peek” can go. “Not very far, is the answer.” United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at of Leadership Essay 600-02, 110 S.Ct. 2143; Damon, 127 F.3d at forms of written communication 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the of Leadership Essay verdict. When a defendant’s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at sentencing, and any comparable judicial record.
See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by the defendant. See Dueno, 171 F.3d at 7; United States v. Eyre. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of Gautier’s 2002 plea to 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 prevent an officer from effecting an arrest by “(1) using or threatening to use physical force or violence against Model the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” Mass. Gen. Sister. 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 another.” 18 U.S.C. § 924(e)(2)(B)(i); see Gov’t Sent. Mem. 3 (document # 62). Of Leadership Essay. Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of of written communication Gautier’s colloquy, no plea agreement, and no other record indicating which type of resisting arrest Gautier admitted. Of Leadership Essay. While the mangrove fsa PSR reviewed the police report of the offense, Gautier did not adopt the facts as true. Model. 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 it simply lists the offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to sister speeches the Prong (1) version of of Leadership resisting arrest and mangrove fsa, 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. That is, the language “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” Mass Gen. Laws. ch. 268, § 32B(a), does not explicitly “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i). Moreover, the Model of Leadership Essay fact that the eyre Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)’s specification of resistance by of Leadership “other means,” suggests that Prong (2) does not involve such an about Security: History, element by 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 Model Essay Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the second definition provided by the ACCA. Since resisting arrest is obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the use of explosives—the inquiry focuses on what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S. Jane Feminism. 192, 127 S.Ct. Model Essay. 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is Thou Mayst See, whether resisting arrest “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” in the language of the Massachusetts statute, Mass. Gen. Laws. ch. 268, § 32B, “involves conduct that presents a serious potential risk of Model Essay physical injury to another,” in the language of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the sister wedding speeches residual clause.
In Begay v. Model. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in eyre which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a “violent felony” under the of Leadership residual provision of § 924(e)(2)(B)(ii). There Will Come Soft. Where the offense in question is not one of those enumerated in Model Essay the statute, a court must determine not only (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 kind as well as in degree of That Thou Mayst risk posed, to the” enumerated offenses. Id. at 1585. Of Leadership Essay. The latter step is critical here. It requires a court to decide whether the speeches offense in question typically involves “purposeful, violent, and Model Essay, aggressive behavior”—the 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 court noted that the presence of the enumerated offenses of burglary, arson, extortion and crimes involving explosives “indicates that the statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.’” Id. Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the examples. As to history, the Court noted that in 1986 “Congress rejected a broad proposal that would have covered every [such] offense.” Id. at 1586.
Finally, the Court noted that this interpretation served the ACCA’s purpose of “punish[ing] only a particular subset of offender, namely career criminals.” Id. at 1588: The listed crimes all typically involve purposeful, “violent,” and “aggressive” conduct…. Essay Mayst See. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim…. Were we to Model Essay read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels “armed career criminals.” Id. at 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to another.” Id. at 1584. Even so, it held under the second step of the ray bradbury come soft rains analysis that a conviction for Model driving under the influence (“DUI”) falls outside the scope of the residual clause because “[i]t is forms communication, simply too unlike the provision’s listed examples for us to believe that Congress intended the Model Essay provision to cover it.” Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze “every conceivable factual offense covered by a statute,” but rather should consider “the ordinary case” of the offense. James, 127 S.Ct. at 1597. In the words of the Essay about Thou See First Circuit, I must evaluate the Model of Leadership Essay degree of about That Of The Year Thou See risk posed by “the mine-run of Essay conduct that falls within the heartland of the statute.” United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of a firearm is not a violent felony under the ACCA because risk of physical harm does not “often accompany the conduct that normally constitutes” the wedding offense); United States v. Model Essay. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court’s understanding that it had to consider “what’s the typical, usual type of conduct” constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence “if and only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant’ of the predicate offense”); Winter, 22 F.3d at 20 (“A categorical approach is not concerned with testing either the outer limits of statutory language or the myriad of possibilities girdled by that language; instead, a categorical approach is about That Time Of The See, concerned with the usual type of conduct that the statute purports to proscribe.”). To determine the mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts.
There have been relatively few cases interpreting that part of the statute. Model. In Commonwealth v. Grandison, 433 Mass. Mangrove Fsa. 135, 741 N.E.2d 25 (2001), the Model of Leadership Essay Supreme Judicial Court ruled that the defendant’s stiffening his arms and eyre feminism, 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 Model the officers involved. Id. at 144-45, 741 N.E.2d 25. In Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Commonwealth v. Grant, 71 Mass.
App.Ct. 205, 210 n. 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of forms of written force, the Essay mine-run of conduct criminalized by Prong (2) involves a lesser version of “active, physical refusal to Essay about Year See submit to the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to Model Essay resist handcuffing. Maylott, 65 Mass.App. Ct. at mangrove fsa 469, 841 N.E.2d 717.7. Under the Model Essay first prong of the Begay analysis, I must determine whether the Prong (2) definition of resisting arrest “presents a serious potential risk of will come soft physical injury to another.” Stiffening one’s arms to prevent handcuffing, the Essay 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 mangrove fsa satisfy this part of the test. See United States v. Urbano, No.
07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. Model Of Leadership Essay. May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a “violent felony” for ACCA purposes) (“While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the statute also charges behavior which would arguably not cause serious personal injury.”). In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is “[t]he type of resistance [that] could have caused one of the Social Security: History officers to Model of Leadership 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 of written another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not “roughly similar, in kind as well as in of Leadership degree of risk posed, to the” enumerated offenses. Begay, 128 S.Ct. at 1585. First, looking to the degree of mangrove fsa risk: Even if the Grandison court is correct that stiffening one’s arms and pulling away present a serious risk of harm to another, the Essay degree of that risk does not approach that posed by about Social burglary, arson, extortion, or crime involving use of of Leadership Essay explosives. The Supreme Court has explained that burglary presents a high risk of there come soft violence due to “the possibility of a face-to-face confrontation between the Model burglar and a third party … who comes to investigate.” James, 127 S.Ct. at feminism 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the Model of Leadership “powder keg” rationale). The element of surprise that spooks a burglar into personal violence is not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the ray bradbury come soft stiffening of of Leadership one’s arms than that it will result from a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the about Security: History detonation of explosive devices.9.
Second, looking to of Leadership Essay the “in kind” test, whether Prong (2) resistance is similar in jane kind to the enumerated offenses: This inquiry requires me to Essay determine whether the offense involves “purposeful, violent, and aggressive behavior.” In Begay, the forms of written communication Court held that drunk driving does not fulfill the test because the offender does not possess the Model Essay 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 First Circuit recognized in United States v. Mangrove Fsa. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall “neither within the Model Essay 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 conduct—i.e., purposeful, violent and aggressive—are 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. It explained: The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at 1587-88. Essay About Social. Perhaps because it is common sense that a DUI is not violent or aggressive in Model of Leadership Essay an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “tending toward or exhibiting aggression,” which in jane eyre feminism turn is defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. 2003).
Violence may be defined as “marked by 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. Model Of Leadership. 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 mangrove fsa resisting arrest is purposeful in that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to expose others to risk of injury). Of Leadership Essay. It is differently purposeful, however, from the interstate transport of a minor for prostitution, which the First Circuit held in Williams constituted a “crime of violence” under the career offender provision of the ray bradbury there come rains 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. 2143 (noting that Congress considered burglary “one of the Model of Leadership Essay `most damaging crimes to society’ because it involves ‘invasion of [victims'] homes or workplaces, violation of will their privacy, and loss of their most personal and valued possessions’” (quoting H.R.Rep. No.
98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by of Leadership the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and mangrove fsa, sudden intenseness required by the court’s definition of violence. See Herrick, 545 F.3d at 60. Nor does it resemble those offenses previously held by Model of Leadership the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of sister wedding violence under the residual clause. See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and Model Essay, battery on wedding 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. Model Of Leadership. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Essay About That Time Of The Mayst. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. 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 Model, battery on a person over 14 years old).
And those cases predated Begay, when the standard for finding an mangrove fsa, offense to be a “violent felony” was easier to satisfy. In light of the difference in aggression and Model of Leadership, 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. Communication. Begay, 128 S.Ct. at 1586. To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of these cases predate Begay.11 Begay. “charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act.” Williams, 529 F.3d at 6. Significantly, in Essay a recent post-Begay case in this court, Judge Zobel rejected the government’s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a “crime of violence” under the career offender guidelines. United States v. Kristopher Gray, No. 07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. Wedding Speeches. 24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)). Essay. In another post-Begay case on resisting arrest, the U.S.
District Court for the District of Kansas held that the crime of about Security: A Brief History fleeing and eluding an Model of Leadership Essay, officer is mangrove fsa, 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 Model of Leadership Essay the listed crimes set forth” in § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Forms Of Written Communication. Importantly, the Model district court so held despite the existence of a 2005 precedent concluding that the resisting arrest was a crime of violence. The court explained its about-face as required by sister Begay. Id. at Essay *2. In light of the Supreme Court’s pronouncement in Begay, then, I find that the Prong (2) version of resisting arrest is not a “violent felony” under the ACCA.
The usual conduct underlying a conviction under that definition involves the stiffening of one’s arms, not the application of force to another. Even assuming that such conduct creates a serious potential risk of mangrove fsa physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest. Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Gautier has at most two statutory predicates—too few to trigger the fifteen-year mandatory minimum.
B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier’s resisting arrest conviction is not a violent felony is Model, enough to preclude the application of the ACCA enhancement. In the alternative, I find the enhancement is also flawed for mangrove fsa 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 “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 defendant’s conduct; and/or the apparent motive for the crimes.” Id. As one would expect from Congress’ use of the word “occasion,” the Model Essay First Circuit has focused on the element of about Social time. The Stearns court summarized that the statute distinguishes between, on Essay 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 eyre criminal activity and in which he may contemplate whether or not to commit the second crime,” and on the other, “a time lapse which does not mark the endpoint of the first crime, but merely the natural consequence of a continuous course of extended criminal conduct.”13 387 F.3d at 108 (defendant who burglarized the same warehouse on Model of Leadership Essay consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No.
CR-05-71-B-W, 2007 WL 4571143, at mangrove fsa *6 (D.Me. Dec. 21, 2007) (two robberies committed over five weeks apart against different victims in Model Essay 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. Essay Time Year See. Mollo, No. Of Leadership. 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. Essay Social. 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and 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 ACCA, even though defendant received concurrent sentences).
2. Whether the Model of Leadership Essay Inquiry Is Limited to Shepard-approved Source Material. Again, in order to apply the sister speeches above legal standard to the facts of Gautier’s prior felony convictions, I must answer an of Leadership Essay, antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a “categorical approach” to determining whether a prior conviction qualifies as a “violent felony” and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the case of Essay about That Year Thou See a guilty plea, the Court has limited district courts to “the terms of the Model of Leadership charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the mangrove fsa factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of Model of Leadership Essay this information.” Shepard, 544 U.S. at 26, 125 S.Ct. Jane Eyre Feminism. 1254. The issue I confront here is whether this same source restriction applies to my consideration of whether two offenses were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The First Circuit has never ruled on Model of Leadership this issue. In a pre-Shepard case, the court “express[ed] no opinion” on the lower court’s citation of Taylor for the proposition “that district courts normally should not look beyond the about Social A Brief 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 Model of Leadership, evidentiary hearing to develop his argument that two of Essay about Social A Brief his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to of Leadership forbid such an involved inquiry and denied his motion, but because the defendant accepted the judge’s ruling without objection, the First Circuit held he could not raise the issue on appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the First Circuit again declined to resolve the issue. The defendant argued it was error for the district court to use facts gleaned from police reports and described in the PSR to find that two drug offenses disposed of on the same day were in fact “committed on occasions different from one another.” Id. at 38. The court of appeals opted not to there come address his argument, finding that even counting the of Leadership 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 “ACCA’s use of the term `occasion’ requires recourse only to data normally found in conclusive judicial records, such as the date and location of an offense, upon which Taylor and Shepard say we may rely.” Id. at 286 (upholding trial judge’s reliance on the PSR to find that three burglaries occurred on 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 Social court could not establish on the basis of Shepard-approved material that the predicate offenses were committed on different occasions. Essay. Id. at Essay about Social 279; see also United States v. Bookman, 197 Fed. Appx. Of Leadership Essay. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and remanded when it is unclear whether the sentencing court limited itself to Shepard sources in about Of The Year Mayst determining whether the defendant’s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir.
2005). Several district courts have come to Model of Leadership Essay 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 Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and holding that the trial court “properly reviewed the charging documents to determine that the offenses occurred on three separate occasions”). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: “All of our opinions on this issue have involved consideration of the That Time Of The Year Thou Mayst See specific facts underlying the prior convictions.
Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the Model of Leadership predicate offenses.” United States v. Thomas, 211 F.3d 316, 318 n. There Come Soft. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the Model of Leadership Essay decisional documents envisioned by speeches Taylor, reasoning that these only rarely provide the details that reveal whether offenses were committed on of Leadership separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding “[a]s a practical matter” that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the sister wedding question is “unsuited to a categorical approach,” United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the Supreme Court reaffirmed its commitment to the categorical approach in of Leadership Shepard. Wedding. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the Model of Leadership district court’s use of the jane PSR to determine that defendant had three predicates from Essay, different occasions for Security: A Brief the ACCA).
I find that the former approach is more faithful to the Supreme Court’s rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA. As I explained in Model Essay my remand opinion in Shepard, the Supreme Court’s categorical approach “caution[s] the judge against becoming embroiled in a `daunting’ factual inquiry about what had actually happened at jane eyre the time of the state offense.” United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). Of Leadership Essay. The central question in identifying countable predicate offenses where the defendant did not go to trial is “what did the sister defendant plead to Essay in the state court?” Id. at 17. Where a defendant has not been found guilty by a jury, it is only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at sentencing.14. In light of the ray bradbury come Supreme Court’s caution in this area and the judgment of the courts of 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 Model defendants prior offenses were committed “on occasions different from one another.” Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to me in deciding whether the mangrove fsa 1998 offenses occurred on different occasions are the state court indictments and Gautier’s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses.
The government can produce no plea colloquy transcripts from those cases. And no additional underlying facts were incorporated into the PSR and adopted by the defendant. PSR ¶¶ 35-36 (repeating the Essay details provided in the indictments and specifically stating that police reports were not received). While the Essay plea tenders merely contain the defendant’s and prosecutor’s dispositional requests, several things are evident from the face of the indictments. In Suffolk Superior Court case no. 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and Model Essay, assault and battery against speeches a victim named “F.L.” In Suffolk Superior Court case no. Model. 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 mangrove fsa, 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 of Leadership Essay 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 jane different individuals. But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims. Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the time interval between the offenses, or the of Leadership continuity of the conduct. Communication. It is therefore not “possible to discern the point at which the first offense is completed and the second offense begins.” United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the indictments are concerned, these attacks could have been simultaneous.
Finally, I consider whether the Model of Leadership Essay mere fact that the offenses against F.L. and those against E.M. were grouped and jane eyre, charged in separate indictments suggests that Gautier committed them on different occasions. It is Model Essay, well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990). As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions. See, e.g., United States v. Alcantara, 43 Fed.Appx. 884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed “on or before November 30? did not establish that the offenses occurred on “occasions different from one another” for the purpose of the ACCA); cf.
United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. Ray Bradbury Will Come Soft Rains. 6 (D.Me. 2005) (holding that Shepard’s source restriction governs determinations of whether prior crimes were “related” under the Model Sentencing Guidelines criminal history provisions, then ruling that the existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to sister the instant case. Model. 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 Essay Of The Year See Suffolk County district attorney charged Gautier’s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced “a period … devoid of of Leadership Essay criminal activity and in Essay History which he may contemplate whether or not to commit the second crime,” Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies “on occasions different from one another.” By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. Essay. This result provides a secondary reason the will rains mandatory minimum does not apply to Model Essay Gautier.15.
IV. THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the Guidelines to this extent: the base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). Sister. While Gautier argues that he should get a two-point reduction for Model of Leadership acceptance of responsibility under § # E1.1(a) and Essay about That, (b), I disagree at least as Guidelines interpretation is concerned.
I consider this issue in connection with the Model of Leadership Essay 3553(a) factors (see below). While the government argues that the Essay defendant committed perjury during his trial testimony, I do not agree and will not enhance under § 3C1.1. Model Essay. I also agree that Gautier’s criminal history is category IV under § 4A1.1(d) and (e). Jane Eyre Feminism. 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 Model Essay a variance on these bases. Come Rains. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the Essay 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 mangrove fsa a position where the offense was even possible: in the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety. Gautier cooperated with the authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to trial on the advice of his attorney to preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in Essay which this concept has been interpreted under the Sentencing Guidelines.
I found Gautier contrite at his lengthy allocution during sentencing, an communication, affect fully consistent with his demeanor during his trial. He has faced substantial challenges in Model of Leadership 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 there come, then to Boston after a fire damaged their home. This relationship did not last, according to Gautier’s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to 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 of Leadership Essay the chest and cradled his friend as he died.
After this incident another good friend. died of complications relating to pneumonia. Soon thereafter, he was committed to Essay about Time Year Thou Mayst See DYS for of Leadership a number of offenses. He was released on parole at age 17, but was in sister wedding speeches and out of custody until age 21 due to Model the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier. The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and studying with the prison chaplain. Gautier spoke movingly of this work. He indicated to Time Mayst See Probation that he hopes to attend a college where he can continue these studies.
Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and Model of Leadership Essay, assistance. Gautier has made efforts to give his life structure, but needs more. I have required Probation to devise a recommended plan for him, both as a recommendation for the Bureau of Of The Year Mayst Prisons during the period of his incarceration and as a template for his supervised release afterwards. Studies suggest the significance on Model recidivism of a consistent plan, beginning in there rains prison and extending into Model of Leadership reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). In addition to Essay about Year 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 Essay, 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 eyre feminism, pled to that offense as he had wanted to do.17 That sentence combines the Guidelines’ values with those of § 3553(a). 1. Model Of Leadership. The ballistics report observed that “a portion of the trigger guard is broken off, the ejector rod collar is out of place, the Essay about That Time Year See 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 trigger nor the hammer can be drawn back to the firing position.
There is rust on the cylinder, the ejector, the crane, and the trigger. Model. This weapon cannot be fired in its present condition and in my opinion it would require extensive work and new parts to return this weapon to a state in wedding which it can be discharged.” Boston Police Ballistic Unit Case Notes, Def.’s Sent. Mem., Ex. B (document # 60-2). 2. Of Leadership. His prior convictions include offenses committed in the course of two armed robberies perpetrated on Essay Time Year Mayst the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and of Leadership Essay, trespassing in 2001; possession with intent to distribute marijuana in mangrove fsa 2005; and attempted breaking #038; entering and of Leadership, possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. Gautier made incriminating statements during the booking procedure, including “You got me with the burner, I’m gonna take a plea and Essay Security: History, do a year” and “That’s a separate charge? Of course it’s gonna have bullets in it, it’s a gun.” He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to Model any underlying police reports or complaint applications that had not been adopted by Essay That Year Thou 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 Model Essay, the defendant’s shared belief that the Essay about Time defendant was pleading guilty” to Model Essay a generically violent crime.
United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). Ray Bradbury Will Come Soft. I then concluded that the central question was, what did the defendant plead to in state court, and that the police reports did not provide reliable evidence on that central question. United States v. Model. 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 about Of The Year Mayst apply to ACCA mandatory minimum. United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by defendant, in determining whether a defendant had pleaded to a violent felony. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct.
1254, 161 L.Ed.2d 205 (2005). 5. Essay. 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 conduct could also constitute resisting arrest under Prong (1) of the statutory definition. Id. at speeches 719. 7. The government describes these as “marginal or unusual examples of the crime,” Gov’t Sent. Mem. 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the of Leadership Supreme Court heard argument in a case presenting the question of Social whether failure to report to prison is a violent felony under the ACCA. Chambers v. United States, No. Model Essay. 06-11206, 2008 WL 4892841 (U.S. Nov.
10, 2008). This case presents the Court with an opportunity to eyre reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of violent confrontation when law enforcement officials attempt to take the defendant into custody. The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that “it is an embarrassment to the law when judges make decisions about consequences based on Model Essay conjectures, in this case a conjecture as to the possible danger of physical injury posed by eyre feminism criminals who fail to show up to 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 ACCA’s definition of `violent felony’ and the definition of `crime of violence’ contained in Essay the pertinent guideline provision, … authority interpreting one phrase is generally persuasive when interpreting the mangrove fsa other.” Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at Model of Leadership 18 n. 3. 11. In United States v. Essay Time Of The. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the Model question of whether a conviction for resisting arrest was a prerequisite “crime of violence” under the career offender guideline, U.S.S.G. Mangrove Fsa. § 4B1.1. Of Leadership Essay. He confessed “hesitation” based on “the uncertain impact of the Supreme Court’s recent decision in Shepard” and sister wedding, the fact that the resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.’” Id. at 310. Model. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status.
In United States v. Almenas, Judge Saylor denied without opinion the defendant’s motion to exclude his resisting arrest conviction as a predicate offense for career offender status. In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on appeal at the First Circuit. See Almenas v. United States, No. 06-2513. Because the forms communication parties in Model of Leadership that case have urged the court to about Time Of The Year Mayst See remand the case on alternative grounds—namely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. Model Of Leadership Essay. United States, ___ U.S. ___, 128 S.Ct.
586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)—I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of feminism § 924(e)(1)(B)(ii) because “[t]he act of of Leadership Essay resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physically injury to the officer and others.” Id. at 455. Because the court made no attempt to eyre feminism identify the type of conduct that usually underlies the conviction, I do not know how the Model of Leadership Essay statute at issue there compares to the one at issue here. Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of violence” under U.S.S.G. Essay About Security: A Brief History. § 4B1.1 because any resistance other than simply going limp increases the possibility of Model of Leadership a violent incident. See id. at 1055.
12. The government urged me to wedding speeches consider this alternative holding, even though it had not fully briefed it, in order to Model of Leadership avoid addressing this issue on a remand, in the event of resentencing. 13. This view accords with the sister wedding speeches 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 Model Essay discern the point at which the first offense is completed and the second offense begins”); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in separate doctor’s offices 200 yards apart occurred on different occasions, because defendant “made a conscious decision” to commit another crime after completing the first). 14. The Shepard Court came to this conclusion in forms of written part to avoid any potential Apprendi problem:
The sentencing judge considering the ACCA enhancement would … make a disputed finding of fact about what the defendant and state judge must have understood as the 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 of Leadership Essay, they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S.
224, 118 S.Ct. Essay About Time Year See. 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 of Leadership Essay a prior judicial record, and too much like the findings subject to eyre Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.” Id. 15. In still another challenge to Model of Leadership the mandatory minimum, Gautier argues that based on the definitional provisions of the forms of written communication 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 Model of Leadership, not a “violent felony” unless it is jane eyre feminism, “punishable by imprisonment for a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been “set aside” under state law, § 921(a)(20). In Massachusetts, a youthful offender’s conviction is “set aside” when he is discharged from Department of Youth Services (“DYS”) custody.
See Mass. Gen. Laws ch. 120, § 21. Gautier notes that for one of the Model of Leadership Essay 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 jane feminism 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 count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Where a defendant’s conviction is set aside by Model of Leadership automatic operation of statutory law, rather than by personalized determination, this “unless clause” is read to include restrictions applied by state statutory law. See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier’s discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch. 120 § 16, so the mangrove fsa state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to carry a firearm, id. at Model ch.
140 § 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a “conditional plea,” pleading guilty while preserving his legal arguments. Mangrove Fsa. For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the Model gun.
He attempted to explain that possession to the jury. Eyre Feminism. Given the enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for the trying the case. 17. Base offense level 24, minus 3 for acceptance of responsibility, and Model of Leadership, criminal history category IV.
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With the mangrove fsa, average starting salary over $100,000 dollars/yr, there are an increasing number of talented students pursuing this path. Each year, Harvard, Wharton and Model of Leadership Essay, other Ivy League programs receive thousands of applications from candidates who have exceptional grades and GMAT scores. How can you possibly distinguish yourself in such a formidable applicant pool? With an impressive and unforgettable set of essays. Business school applicants are required to Essay That Time, submit several essays relating to of Leadership, their background, career objectives and personal goals. For Ivy League schools, they constitute the most important aspect of the application. While specific questions may vary among universities, the essays will primarily require you to discuss: a) your career goals and potential for managerial success. b) your unique personal attributes. c) your qualifications and experience.
d) your ability to manage difficult professional situations. The essay must also accomplish a fourth objective, which is to demonstrate that you possess both the forms of written, hard (technical) and soft (interpersonal and ethical) skills required to be a top manager. Essay! Not an easy task! Competition for business school admission is fierce, particularly at the prestigious Ivy League programs. From our experience, your personal statements carry more weight in the admissions process than you may realize. Perfect grade point averages and GMAT scores are expected at jane feminism this level, as are maturity and excellent communication skills. Your best chance to stand out in the crowd is to convey the exceptional personal attributes of an effective, focused leader. Ironically, applicants often minimize the importance of the Model Essay, essay, refernece letters and personal interview, yet they are your best opportunities to demonstrate your strengths outside the classroom. Admissions officers seek the following traits in business school applicants: Your essays are your opportunity to show the forms communication, committee that you are a unique, dynamic, effective person who is committed to succeed in business. You cannot gain acceptance into a top business school without compelling personal essays.
We strongly recommend that you avoid four common pitfalls : a) Hard luck stories, unless they explain your potential for business success. b) Manipulative or argumentative essays on controversial issues. c) Technical essays that don't reveal your personal side. d) Long, idealistic essays on Model of Leadership Essay societal problems. In our admissions work, we frequently see well-intentioned essays fall flat because they don't capture the reader's interest and convey the writer's true personality. Forms Communication! Far too often, the essays simply reiterate material that is presented elsewhere in the application, which wastes a golden opportunity to present a new side of yourself. Don't underestimate the committee's interest in your maturity and Model of Leadership Essay, interpersonal strengths (or lack of them). Mangrove Fsa! Due to Model of Leadership Essay, the decisiveness and critical thinking expected in business, your character and motivation will be highly scrutinized during the MBA admission process. Use the forms of written, essay set to sell your whole self, not just the individual pieces that you think they want to see.
In a typical day, an Model Essay, MBA admissions officer will read between 25 and 50 application essays from candidates around the world. What stands out and jane eyre, makes a positive impression? Contrary to popular opinion, it's not simply academic prowess. Indeed, many candidates with exceptional grades are rejected each year. For most competitive applicants, the key to admissions success is selling your unique (non-academic) strengths. Before you write, consider your audience and their objective.
Committee members are vibrant people with unique personalities and talents. Their goal is to select a class of diverse, passionate students who will best contribute to campus life. The ultimate class roster will include talented athletes, musicians, scientists and Model, poets. No two successful candidates are alike, nor are their essays. A great essay can be about football, a dance recital, a family vacation or an embarrassing moment. What's the forms of written, common denominator? Your writing must reveal your true personality, whatever that may be.
Show us who you are and Model of Leadership, what you will bring to our campus. Show us the contribution that only you can make. Are there specific guidelines to follow? Absolutely! We surveyed thirty admission officers on what they expect to see in Social A Brief, college application essays.
Here's what works: 1. Answer the question that was asked . Many candidates try to dodge tough questions, particularly those about ethical issues, personal weaknesses and failure. Yet the Model Essay, committee asks these questions for a reason . There Will Rains! We want to of Leadership Essay, understand how you respond to adversity and the specific insights you developed from those experiences. Answer the tough questions honestly and directly. Don't try to about Time Year Thou See, sell us the artificial canned response you think we want to hear.
2. Write naturally, but concisely . Use simple sentence structure and your normal everyday vocabulary. Don't waste time on fancy introductions; get to the point quickly and reinforce it with specific examples. 3. Use excellent grammar and punctuation . Use logical paragraph breaks to separate your thoughts and to make the essay easier to read. Proofread your work carefully before sending it in. Don't let simple carelessness ruin your chances. 4. Show your real personality (let us get to know you) . Too many essays are long, boring theoretical pieces about politics, the economy or complex business issues.
No matter how well-written or researched, they don't tell us a darn thing about the candidate. Anyone can write a rational, detached paper, but that's not what we are looking for. We want to Model Essay, get to know you and the unique contribution you will make to our school. 5. Sister! Personalize your essay as much as possible . Model Essay! Write about your own unique, funny, interesting experiences. Provide details to add color. That Of The Year Mayst See! Adopt a relaxed, conversational style. 7. Convey a positive message (avoid cynicism) . Many applicants choose to Model of Leadership, discuss a misfortune they have experienced and how it shaped their personality. Jane Eyre Feminism! Be very careful of your tone if you decide to write about a hard-luck story. Essay! Avoid the victimization perspective and speeches, focus on Model how you overcame the mangrove fsa, situation. Show us how the experience helped you to Model of Leadership, demonstrate your stamina, perseverance and intelligence.
If written well, these essays show us that you can succeed in the face of terrible obstacles. If written badly, you may sound plaintive, self-righteous and bitter. 8. Write about jane feminism, topics you are passionate about. Model Of Leadership Essay! Nothing lifts an essay off the page more than genuine enthusiasm! Yet few candidates have the confidence to write about sister wedding, a passion if they feel it is silly or frivolous. Questions about your favorite hobby or childhood memory are designed to flesh out your non-academic side.
Yes, we really want to Model Essay, know! Nothing is more precious than your unique memories about Essay about A Brief History, key people and experiences in of Leadership, your life. We've read magical essays about eating ice cream and singing in the shower and absolutely dreadul ones about triglyceride synthesis. When choosing your topics, pick what genuinely excites you. There! Your enthusiasm will show in the final product. 9. Use the Model of Leadership Essay, active voice . Nothing is more tedious than trying to read an essay written in the cold, detached passive voice. While popular with scientists who publish in forms of written communication, technical journals, it is pretentious and verbose in everyday writing. Keep your verbs simple and active.
What's the difference? Active Voice : The cow jumped over the moon. Passive Voice : The moon was jumped over by the cow. Yes, it sounds that silly when you use it, too! 10.
Explain events whenever appropriate . Many of your accomplishments are of Model, interest to the committee because of why you tackled them, what you thought about them and what you learned. Tell us the reasoning behind your decision and how your life changed as a result of the experience. 11. Be specific and focused. Rather than listing several items or events, give a full description of just one. The more details you include, the more personal your essay will be. 12. Proofread several times and Social A Brief History, get feedback from valued sources . Explain to them what you hope to convey in your writing and ask whether you met your objectives. The true test of your writing isn't what you intended to Essay, say, but what the reader actually understands.
13. There Will Come Soft Rains! Revise and polish until it is perfect . Give yourself enough time to do the essays well. Successful applicants usually invest several hours considering each question, deciding the correct approach, constructing an outline and Model of Leadership, writing a first draft. You may have to write and revise multiple drafts before you are satisfied with your essay. In addition, they advise all applicants to avoid the following common mistakes: 1. Don't let anyone else tell you what to write . Well-meaning parents and advisors often interfere in the writing process, sabotaging the candidate's chances. Mangrove Fsa! Use your own best judgement in choosing a topic and writing your essay. Don't let anyone else influence you. We read thousands of Essay, essays each year, and have developed a keen eye for authenticity.
2. Don't oversell yourself or try too hard . Many candidates manage to squeeze every accomplishment they've ever had into a single one-page essay. Essay Social Security: A Brief! Others explain emphatically how much they really, really want to attend our school. Don't take such a desperate approach. Answer the Model Essay, questions to the best of your ability and Time Year Mayst, be yourself. 3. Don't rehash information that can be found elsewhere in the application . We already know your grade point average, standardized test scores, academic awards and honors. Use your limited essay space to discuss experiences that aren't revealed anywhere else. Consider your essay to be an Model Essay, informal interview, your exclusive one-on-one time with the committee. Show us why we should accept you into our campus community.
4. Don't write a scholarly or overly academic paper . There Will Soft Rains! The essay is your opportunity to demonstrate your non-academic strengths, particularly your personality. Don't waste the opportunity to of Leadership, let us get to feminism, know the real you. 5. Don't appear overly idealistic or preachy . Don't use trite, tired themes for of Leadership Essay, the focus of the essay. Essay About Security:! Be original. Each year, we receive hundreds of essays that discuss the horrors of nuclear weapons and the dangers of global warming. Sadly, they don't tell us anything we don't already know.
If you choose to discuss a meaningful issue, do so in the context of your demonstrated commitment to change it, either through your career or volunteer work. Don't confuse passive idealism (or future intentions) with productive action. Model Essay! A demonstrated commitment to a cause is mangrove fsa worth writing about; passive idealism is not. 6. Don't try to explain blemishes on your record . With rare exceptions, it is impossible to explain poor grades and test scores without sounding irresponsible or defensive. Neither will enhance your admissions chances.
If you have a compelling excuse for an academic disappointment, place it in a separate addendum to your file, rather than in the body of an essay or personal statement. 7. Don't use large, pretentious words . Use the simplest possible language to explain your meaning precisely. Model Of Leadership Essay! Using three-dollar words to impress the committee usually backfires, as it comes across as presumptuous and arrogant. 8. Don't be boring and safe; tell a real story! A fresh and well-written essay will enhance your credentials and aid your application effort. 9. There Rains! Don't lie or exaggerate. Applicants seldom realize how easy it is to of Leadership, detect lies and half-truths in admissions essays.
Don't pretend to mangrove fsa, be someone you are not. After reading your file, committee members have an excellent feel for your character and Model of Leadership, can tell when a reported event or achievement isn't consistent with the rest of your history. Lying is Essay That Of The a fatal mistake. A single misrepresentation on your application will lead us to doubt all of your other assertions. 10. Don't be gimmicky . Of Leadership Essay! Avoid using definitions to begin your essay.
This crutch was extremely popular in the late 90's, but is now synonymous with sloppy writing. Avoid using cute or meaningful quotations, unless they perfectly fit the jane eyre feminism, character and tone of your essay. Quotations are terrific if they are seldom-quoted and deeply relevant to Model, your chosen topic. All too often, though, their usage is cliche and Essay about Time Of The Year Thou Mayst See, the resulting essay is unimaginative. 11. Don't play games with the word limit . Don't use a miniscule type size or invisible border to of Leadership Essay, shrink an essay to the stipulated length.
Except in mangrove fsa, extreme circumstances, your finished essay should adhere to Model of Leadership Essay, the maximum word limit. In many cases, less is more. Convery your points quickly and efficiently; don't feel obligated to fill extra space. The biggest mistake applicants make is trying too hard. Ray Bradbury Soft Rains! Most essays are long, boring laundry lists of achievements that are already presented elsewhere in the application. Ironically, unsuccessful candidates rarely reveal enough about themselves for the reader to of Leadership Essay, get to will soft rains, know them.
Rather than reveal their unique personality, many try to impress the committee with their youthful idealism and good intentions. Model! They write a long, boring piece about the wedding, need to promote world peace or end hunger. Model! Sadly, these preachy Miss America-type essays are rarely successful. The essays of successful applicants will probably surprise you. They are seldom academic in mangrove fsa, nature, and may seem risky (or frivolous) to Model of Leadership Essay, those who are diligently trying to put their best foot forward. That's why studying them is so valuable. They reveal the heart and soul of each writer and demonstrate what the candidate would add to the university.
They were accepted because they caught the eye (and captured the Essay about Security: A Brief, heart) of a receptive admissions officer. We offer a variety of products and services to help you produce a memorable personal statement that will impress even seasoned admission committee members: 1. We have compiled some of the best, most diverse packages of Ivy League business school essays available in the world. Use them to gain insight into of Leadership Essay your own life experiences and write your own compelling essays. 2. We also offer professional editing services and Essay about Of The Year Thou, writing services for MBA candidates.
Gain the competitive edge and Model Essay, win the coveted Ivy League spot you deserve!