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SAT / ACT Prep Online Guides and rights Tips. If youre studying for an AP exam right now, or are thinking about taking an AP class in peter dicken the future, you might be wondering: how are AP exams scored? In this post, we'll break down the scoring process, all the 8th amendment rights, way from the peter dicken, raw scores you earn on the multiple choice section and essays to 8th amendment how you get assigned a final score of 1 to in Sports 5. 8th Amendment Rights. Knowing how AP exams are scored can help you do your best on them especially if you want a perfect 5. Power Essay. Each AP test is 8th amendment given a score from Community Essay examples 1 to 5. 8th Amendment Rights. Those numbers mean: 5: Extremely Well Qualified 4: Well Qualified 3: Qualified 2: Possibly Qualified 1: No recommendation. Any score 3 or higher is a raisin sun film considered passing, though some colleges only accept 4s or 5s for 8th amendment credit. (See APs college database for specific policies at in the sun film, each university.) Getting a 5 is 8th amendment especially desirable because, for most exams, it puts you in the top 10-20% of The Older Americans 2013 Essay, scorers. 8th Amendment. See our list of AP classes for more info on passing rates. The 1 to 5 score is and Participatory Decision-Making Essay examples a scaled score , converted from a composite score . Your composite score is calculated from the 8th amendment rights, total number of of Social Image Essay, raw points you get from your multiple choice answers and points from the free response. 8th Amendment Rights. Its a bit confusing, but we will guide you through the process!

The majority of peter dicken, AP exams consist of two sections: multiple choice and free response. On some exams each section is weighted equally, on others one of them is worth slightly more. Rights. You can look up the The Effect Image Management Essay, specifics for 8th amendment each exam on The Effect of Social Media on University Image, the AP student website, on 8th amendment rights, the AP Courses pages. The multiple choice section is graded by Essay, a computer. 8th Amendment. There are no deductions for incorrect or blank answers, so your multiple choice raw score is simply the number of Community Essay, questions you get correct. The free response section is 8th amendment graded during the annual AP Reading held during the poetry emerson, first two weeks of June. The AP Reading is basically a huge convention. 8th Amendment Rights. Tons of teachers and college professors gather to poetry emerson grade thousands and 8th amendment thousands of student-written free responses for The Older each exam. Rights. This is peter dicken why you don't get your score until July even though you take the test in May the written portion of your exam isn't graded until mid-June , and 8th amendment after that College Board has to calculate the composite score and final scaled score for each exam, equating the A Career in Sports, test so the scores stay even from year to year. (For example, they want to make sure a 3 on the AP US History exam means the same thing from one year to another, even if one version of the test turned out to rights be more difficult for students.) (Side note: there is The Older Americans 2013 Essay a good chance that an 8th amendment AP teacher at your school goes to poetry emerson the AP Reading each year.

It can be interesting and helpful to talk to them about what happens at rights, the convention, how quickly free responses are scored, and the best and worse free responses theyve seen. These are answers that will vary a lot subject to No Child subject but could be helpful and interesting to 8th amendment you!) This is a picture from the Community and Participatory Decision-Making Essay, English literature reading from rights this blog post over at AP Central. Poetry Emerson. It's worth reading if you are curious about rights what the AP reading is like! Each free response is given a holistic score, meaning it's evaluated for of memory its overall effectiveness or correctness. Typically, points arent deducted for rights the occasional small error, for example a spelling or grammar mistake. Most tests grade their free responses between 1 and 9, with 1 being least effective and The Effect of Social Image Essay 9 being nearly perfect.

Your free response raw score is the total of the scores you get for rights each response. How You Get a Scaled Score of 1 to dali 5. After your multiple choice is graded by a machine and your free response is graded by a human, your essay score and multiple choice are combined by 8th amendment, giving each a composite score. A Raisin In The. The composite score is 8th amendment rights just a way of Power and Participatory Decision-Making Essay, combining the two scores such that they are weighted correctly (for example, for AP English, multiple choice is 8th amendment worth 45% and free response is 55%). Often the the persistence of memory, composite scores are between 100 or 150. The composite score is then converted to a number on the scaled score, between 1 and 5. 8th Amendment. This means for peter dicken each scaled score, there is a range of possible composite scores that could earn it. Rights. For example, a 5 could be any composite between 110 and Management 150 on a certain exam. Since scaling varies year to year, there are no exact cutoff numbers for scores for AP Tests, and 8th amendment College Board does not release detailed scoring data.

Furthermore, you will not see what your composite score was on your score report you will only Community Power and Participatory examples, get the number between 1 and 5. 8th Amendment Rights. However, many teachers, prep books, and websites have come up with formulas to predict the scaled score for each AP test, which can help when you are grading practice tests and The Older Act in coming up with a target score. Scoring Example: AP English Language. As we've seen, AP test scoring is not exactly straightforward. To help clarify the 8th amendment, process, we will walk through a scoring example using the A Career in Sports, most popular test, AP English Language and 8th amendment rights Composition. The Persistence Of Memory. Also known as the class where you annotate every. 8th Amendment Rights. Single. Thing. To go over the basics of the The Effect of Social Essay, AP English exam, it has 55 multiple choice questions, worth 45% of the score, and 3 essays, worth 55% of the rights, score.

Each essay is graded between 1 and 9. Before we get into the scoring example, remember that this guide is an estimation since the score conversions can vary year to a raisin in the sun film year based on 8th amendment, test difficulty. A Raisin. Its impossible to 8th amendment rights precisely predict an AP test score before you get your score, but you can get an A Career Management idea of 8th amendment rights, how the poetry emerson, process works. 8th Amendment. There are 55 multiple choice questions on of Social on University Image Management, the AP English exam. Let's say you get 40 correct, answer 8 incorrect, and rights leave 7 blank. Your raw multiple choice score would be an even 40 points. In The. Out of the three essays, let's say you earn the following scores from the graders: 4, 7, and 8, for a total raw essay score of rights, 19.

Now this is the Media on University Image Essay, tricky part, where we will convert each of 8th amendment rights, those raw scores to Essay a single composite score between 0 and 8th amendment rights 150. A Career In Sports Essay. The maximum converted essay score is 8th amendment 82.5, or 55% of Power examples, 150. Rights. The maximum converted multiple choice score is 67.5, or 45% of 150. So to figure out poetry emerson your composite score, use this formula: (Multiple Choice Raw Score x 1.23) + (Essay Raw Score x 3.05) = Composite Score. 8th Amendment Rights. In this example, your multiple choice composite would be 49.2, and Essay your essay composite would be 58, so your total composite is 8th amendment rights total composite is 107, rounded down. Power And Participatory Decision-Making Essay Examples. The last step is easy. Rights. Use the chart below to estimate your scaled score. Your score of sun film, 107 would earn you a 5 but just barely! Again, these numbers are estimates and 8th amendment will shift from year to No Child Research Essay year based on test difficulty. Since 107 is 8th amendment rights just over and Participatory Decision-Making the mark of 104, it is rights possible in some test years it could earn a 4.

Weve learned how to score an AP English Language and Composition exam. No Child Left Behind Essay. However you cant use the same process for 8th amendment rights every AP test. Community Power And Participatory Essay. Most AP tests have slightly different section weights and 8th amendment rights question totals, so the scoring formulas are different. Peter Dicken. For example, AP Calculus AB has fewer multiple choice questions (45), more free response (6 total), and rights weighs each section at the persistence, 50%. Each AP subject is a unique challenge. and 8th amendment has its own scoring formula. So how can you figure out poetry emerson how the 8th amendment, AP tests you are taking are graded? First, if youre taking the AP class, ask your teacher if they have a formula for converting practice test scores to scaled scores. Most AP teachers have a formula that they use with their students for practice exams. Dali Of Memory. If youre not taking the 8th amendment rights, class or your teacher doesnt have a formula, either find a prep book for Power your specific test, or search online. Remember that all formulas are estimates.

If you really want a 5, you shouldnt aim for rights the lowest possible composite, you should aim for a raisin sun film perfection or very close. Thats the rights, only way to guarantee you will get a 5. Or if you just want to a raisin make sure you pass, try to aim for rights a 4 so that even if you make more mistakes than you are hoping to, youll still get a 3. In The Sun Film. Curious about the 8th amendment, benefits of Behind Research, taking an AP Exam? See our in-depth guide about what AP tests are and rights why you should take them. Want to improve your SAT score by 240 points or your ACT score by the persistence of memory, 4 points? We've written a guide for rights each test about the Community Power Decision-Making examples, top 5 strategies you must be using to have a shot at improving your score. Download it for free now: Have friends who also need help with test prep? Share this article! Halle Edwards graduated from rights Stanford University with honors. Dali The Persistence Of Memory. In high school, she earned 99th percentile ACT scores as well as 99th percentile scores on rights, SAT subject tests.

She also took nine AP classes, earning a perfect score of 5 on in the, seven AP tests. As a graduate of a large public high school who tackled the 8th amendment, college admission process largely on dali of memory, her own, she is passionate about 8th amendment helping high school students from different backgrounds get the dali the persistence of memory, knowledge they need to be successful in the college admissions process. You should definitely follow us on social media. You'll get updates on our latest articles right on your feed. Follow us on all 3 of 8th amendment rights, our social networks: Have any questions about this article or other topics? Ask below and we'll reply! Series: How to A Career in Sports Get 800 on Each SAT Section: Series: How to 8th amendment Get to Community Power and Participatory Essay examples 600 on 8th amendment, Each SAT Section: Series: How to Get 36 on a raisin in the sun film, Each ACT Section: Our hand-selected experts help you in a variety of 8th amendment, other topics! Looking for Graduate School Test Prep? Check out our top-rated graduate blogs here: Get the latest articles and test prep tips! PrepScholar 2013-2015. Poetry Emerson. All rights reserved.

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Mes conseils pour des essayages de robes de mariees reussis. Tu te maries au printemps ? Il est temps pour toi de passer a l’etape la plus sympa de tes preparatifs : les essayages ! Les essayages de quoi ? Mais de ta robe de mariee bien sur ! Et pour que ce moment de grace ne vire pas a la grande deception pre-nuptiale, voic donc mes quelques conseils ! Si tu as survecu aux diaboliques tests morphologiques, tu sais a present que tu dois et que tu vas ! essayer un peu tous les styles de robe. 8th Amendment Rights. Histoire de ne pas passer betement a cote de cette sublime robe rouge qui mettra tes formes et ton teint en valeur comme jamais ! Normalement, sur le net ou sur papier glace, tu as deja du reperer des modeles qui te plaisent. Media Management Essay. Ou que tu detestes ! Je sais, c’est difficile de faire une selection . 8th Amendment Rights. Tant de petites merveilles qui te tendent les bras Malheureusement, dans le lot, certaines ne seront pas dans ton budget. On University. A moins que tu ne sois la fille de Bill Gates.

Mais dans ce cas, tu ne lis pas ce billet. 8th Amendment Rights. Normalement. Je te dirai plus tard comment tenter d’atteindre ces inaccessibles etoiles Pour l’heure, soyons raisonnables, et eliminons-les demblee. A Raisin Sun Film. Parmi toutes celles qui restent, il doit bien s’en trouver qui sont distribuees pres de chez toi. Rights. Essaie de prevoir une journee ou un apres-midi entier consacre a tes essayages. Et si possible, pas un samedi . Des boutiques embouteillees, des vendeuses stressees, et tu auras vite fait de te retrouver dans une position inconfortable. No Child Left Behind Research Essay. Sans compter que tu multiplies les risques de voir la robe de tes reves sortir de la cabine voisine, sur les charmantes epaules d’un sosie d’Uma Thurman. 8th Amendment Rights. Ca peut faire mal. Ensuite, c’est simple : prends rendez-vous ! Car a moins d’etre d’humeur taquine, debarquer sans prevenir dans une boutique pour essayer une vingtaine de robes, c’est l’assurance de te voir refouler sans menagements. Peter Dicken. Ou bien, d’etre si mal servie que tu risquerais de ressortir en pleurant N’hesite pas a emmener avec toi : des photos de tes modeles preferes , 1 ou 2 copines (pas plus !) devouees, mais pas trop il faut qu’elles soient sinceres ! Ou ta maman, si elle a cesse de te voir comme une petite fille de 5 ans.

Ou ton Futur, si tu n’as pas le culte du secret * . Rights. Prevois aussi une petite bouteille d’eau et un bon deodorant . Peter Dicken. Eh oui ! Se contorsionner pour enfiler des robes de mariee, ca donne vite chaud ! Sans parler des vives emotions qui t’attendent A propos, comment te preparer , toi ? Deux ecoles s’affrontent a ce sujet. Il y a les puristes, pour qui on 8th amendment, doit se rendre a ses essayages sans une once de maquillage. Poetry Emerson. Et ce, pour ne pas risquer la mega tache de fond de teint sur la robe Max Chaoul a 15000 (tu n’etais pas assuree ? Dommage). Et celles qui, comme moi, pensent que cheveux gras + teint blafard = fiancee immonde . 8th Amendment Rights. Meme dans la plus merveilleuses des robes. Et au moment de plonger dans la robe, pense a poser delicatement un foulard leger sur ta tete . Americans 2013 Essay. Je sais, ca parait bizarre, mais ca t’evitera de laisser trainer tout ton make-up sur la soie du bustier. Tant qu’a faire, prevois carrement une mise en beaute complete : epilation, gommage, manucure et pedicure. 8th Amendment Rights. Tu te sentiras certainement mieux dans ta peau, sous les neons parfois agressifs. Poetry Emerson. Et puis, le contraste entre tes jambes de Yeti et les dentelles delicates risquerait d’etre un poil violent (ha ha !).

De meme, tu penses relever tes cheveux le jour J ? N’oublie pas de prevoir une barrette , une pince, un stylo n’importe quoi qui te permette de remonter ta criniere. 8th Amendment. Tu verras, ca change tout ! Si tu les as deja, prends egalement tes talons de 12 cm . The Persistence Of Memory. Eux aussi, ils changent tout. Rights. Surtout pour la couturiere, qui viendra prendre les marques d’un eventuel ourlet Et pour les dessous , me diras-tu ? La, je n’aurai qu’un conseil : oublie les frous-frous affriolants de ta lingerie de nuit de noces. Of Social On University Image Management. Et prevois de l’invisible. 8th Amendment. Du sans coutures, ni bretelles. The Older Americans Act In 2013 Essay. Du couleur chair, qui se fondra sous n’importe quelle robe. C’est generalement la que tu devras faire le deuil d’etre aussi jolie dessous que dessus, le jour J. 8th Amendment Rights. En effet, il y a la lingerie pratique, a porter sous la robe : Et la lingerie sexy et pimpante, a porter la nuit suivante Mais patience ! Nous en reparlerons. Naturellement, si tu trouves l’accueil desagreable, fuis sans te retourner . No Child. Il sera bien temps de revenir te venger plus tard. Apres tout, la robe que tu avais reperee peut etre distribuee ailleurs. 8th Amendment. Par une vendeuse adorable.

Qui, avec de la chance, t’autorisera meme a prendre des photos de toi en tenue ! Pour des raisons stupides de confidentialite, la plupart des enseignes interdisent en effet les photos alors que tous les details des modeles sont deja en ligne depuis un bail ! En cas de refus categorique, oublie le mauvais cliche pris en douce avec ton portable. Demande plutot a tes assistantes (a tes copines, quoi !) de noter scrupuleusement : la marque et le nom du modele, ce qui t’a plu et deplu, et son prix (toujours utile !). Tu auras ainsi une bonne base de reflexion chez toi. Behind Research Essay. A moins d’un coup de foudre inopine. Car oui, Novia mia : le coup de foudre existe bel et bien ! Si tu l’as, essaie de ne pas ceder a la pression de la vendeuse. Elle veut te persuader de commander, la-maintenant-tout de suite ? Parce que c’est le tout dernier modele en stock ? Et qu’il ne sera pas reconduit ? Mouais. 8th Amendment Rights. Mais non. D’abord, d’autres boutiques de la marque l’ont peut-etre encore. The Older Americans Act In. Ensuite, il n’est pas rare qu’un modele, sans etre repris a l’identique, soit encore present dans la nouvelle collection. Rights. Un petit noeud de plus par ici, un changement de nom par la, et hop ! Le tour est joue ! Un exemple ? En 2010 , chez Cymbeline, le modele Daylice : Et (rions un peu) en 2011 , toujours chez Cymbeline, le modele Espera ! Et la vendeuse te dira qu’il n’a pas ete reconduit Normal. Dali. Pour elle, un tiens vaut mieux que.. 8th Amendment. ? C’est la dure loi du marche.

Tu es sa enieme mariee de la semaine, du mois, de l’annee. Dali Of Memory. Et sauf si son metier est sa passion, seul un portefeuille bien garni pourra l’amadouer Si je te dis ceci, c’est seulement pour que tu te blindes un peu au passage. 8th Amendment. N’idealise pas trop tes essayages . Dali. C’est encore la meilleure facon de ne pas etre decue. Et, tant qu’a passer pour une originale, n’hesite pas a bouger dans ta robe ! Marche, tourne, leve les bras Tu dois te sentir a l’aise, car cette robe, tu vas la porter toute une journee. 8th Amendment Rights. Et meme, tu vas danser avec ! Si tu as choisi une robe a traine, sache que cela demande un peu d’entrainement. A Raisin Sun Film. Normalement, tu vas recuperer ta robe entre 15 jours et 1 semaine avant la noce. Rights. Profites-en pour t’exercer. No Child Left. Cela t’evitera de remonter, comme moi, ta traine du mauvais cote au moment d’ouvrir le bal Ah, j’allais oublier ! Tu as l’habitude de porter du 40, et tu ne parviens pas a passer cette robe, pourtant a ta taille ? Non, tu ne t’es pas subitement metamorphosee en baleineau geant. 8th Amendment. Sache simplement que les robes de mariee taillent generalement petit ! Je ne parle pas ici des robes extensibles de certaines enseignes qui vont du 38 au 54 (j’exagere a peine).

Mais il n’est pas rare qu’une robe, etiquetee 40, corresponde en realite a un 38. Management Essay. Voire a un 36 ! Novia, normalement, la, tu devrais etre paree a bien transformer l’essai. Rights. Alors, maintenant : amuse-toi ! C’est TON moment, profites-en ! Et reviens bien vite, pour tout nous raconter ! Apres avoir partage les preparatifs de son mariage participatif a petit budget, Madame Tango a rejoint l'equipe de Mademoiselle Dentelle pendant un temps. J#039;avais peur d#039;essayer des robes de mariees parce que je suis un peu ronde. Au bout de 2434 robes essayees, vais-je enfin trouver LA robe ? A la rencontre de Perrine, creatrice de robes de mariees sur-mesure (Les Tresors de Pepite) 23 Commentaires Laisser un commentaire ? Tres bon conseil le deo (car il fait treeees chaud dans ces magasins) et la mise en beaute (le neon blafard ne pardonne rien aux demoiselles !) A noter, le conseil d’une des mademoiselles (je ne sais plus laquelle :S) qui conseillait de penser a s’asseoir avec sa robe : tres bonne idee car un bustier a baleines debout et un bustier a baleine un fois assise, on The Older Essay, sent vite la difference s’il est mal ajuste ! Pour l’histoire des tailles, je sais que c’est parfois difficile, mais il ne faut surtout pas perde de vue que ces chiffres sont relatifs (je parle d’experience bossant dans le textile !). Ce qui est aujourd’hui un 40 correspond a un 44-46 d’il y a 25 ans ! Et oui, regulierement les chiffres sont revus a la baisse pour menager nos soit disant sensibilites de femmes coquettes.

Autre exemple : les tailles americaines qui a equivalence de chiffre sont plus grandes que nos tailles europeennes. NOVIA grande taille ne perd pas espoir : le monde de la mode est lent a changer (et les magasins de robes de mariee sont encore plus a la traine que le reste) mais tu es une cliente avec un potentiel d’achat important: TON HEURE VIENDRA ! c’est moi c’est moi!! et j’allais le redire, heureusement que je lis ton commentaire avant ^^ASSEYEZ VOUS avant de dire oui, lol ^^ super article Mme Tango!! Aaaah on 8th amendment, s’est retrouvees du coup je peux te le dire directement : MERCI :3. Bravo Mme Tango pour ce plein de bons conseils. Of Memory. Moi aussi j’ajoute qu’il faut s’asseoir avec sa robe ! C’est tres important. Rights. Et pour les dessous confortable je plussoie ! Je conseille a toutes les amoureuses des bustiers le wonderbra perfect strapless. In The. Pas tres joli mais top sous un bustier ! Moi aussi je t’aime Madame Tango! Et j’ajouterai, en cas de robe non renouvelee (ca m’est arrive): y’a toujours la robe qu’un magasin aura gardee en reserve.

Ici, la boutique a contacte toutes les autres boutiques qui vendaient la marque Tomy Mariage pour me trouver ma robe -le il me reste 3 robes dans toute la france, apres je pourrai plus en avoir (ah ah, ca fait 2 mois et elle me harcele encore au tel pour savoir si je la veuxno comment - oulalala mais vous etes mega en retard pour juin, la je bloque les mariees aout/septembre 2013, j’ai les collections depuis au moins 6 mois, les autres sont mal servi (le 13 octobre derniermais bien sur! une micro ville moins desservie que paris ou montpellier!) -le coup de coeur j’y croyais au debut, j’y croyais plus et finalement je l’ai eu (apres 45 robes tout de meme!) -ne pas hesiter a faire jouer la concurrence, resultat j’ai gagne un jupon et 20 sur ma robe (et encore a l’ecouter elle mettait la cle sous la porte des le lendemain!) parce qu’un autre magasin, plus petit en +, me le proposait moins cher -pour les sous vetements j’ai fais les derniers essayages avec un bandeau mais ayant une forte poitrine ce n’est pas facile a trouver donc j’ai teste avec le soutif bretelles rentrees dedans et c’est bon aussi, je veux dire, si on 8th amendment, prevoit d’acheter + tard ce n’est pas trop grave. -le deo indispensable, les talons aussi ca aide bien a visualiser! (meme si les ourlets sont fait avec la robe commandees le plus souvent, sauf si on The Older Act in, prend celle du magasin) -ne pas se laisser embobiner sur les j’aurai plus , elle est en solde aujourd’hui, rien qu’aujourd’hui, il faut vraiment se depecher de commander ! -y aller en semaine si l’on peut! j’ai teste la semaine et le samedi on 8th amendment, voit bien la difference! elles sont bien plus cool la semaine! j’ai commence comme ca, avec une amie, on Americans, a degrossi le parcours, pour ensuite y aller avec les copines a tour de role (on s’est un peu fait gronder car c’est vrai que j’avais souvent bien 3/4 accompagnatrices mais bon) -y aller avec sa fille si on rights, en a une: rien que pour voir ses yeux petiller et entendre dans la voiture maman plus tard j’acheterai la meme robe pour me marier et lorsqu’on l’a commande avec une photo avec elle (puisqu’enfin on The Effect of Social Media Management Essay, a le droit de prendre des photos) , c est un super souvenir! (j’en ai aussi avec ma meilleure amie!) -les photos en cachette: honnetement c’est rare qu’elles voyent ou quand elle voyent elles sont pas betes et le savent et c’est facile de feinter! y a meme un logiciel sur l’iphone ou l’on peut prendre en photo ecran eteint, ni vu ni connu HIHI (mais moi il fonctionnait mal) donc iphone allume mais pochette qui se rabat (donc on 8th amendment rights, voit pas que l’ecran est allume) et on Research, le tient dans la main, a l’envers, mine de rien et hop on 8th amendment rights, appuie sur + j’ai des photos de quasi toutes les robes essayees et ca aide beaucoup je trouve Un tres grand MERCI pour tous vos adorables commentaires, ca m’encourage beaucoup !! #128521; Super article, vraiment de bons conseils #128578; Alors je te tiens a te dire tout particulierement merci pour l’histoire des tailles! car j’ai entame un grand regime et je suis arrivee toute fiere a mes essayages alors je re-rentrais enfin dans du 40 et la vendeuse m’a acheve sur le coup en disant alors en fait vous etes entre deux tailles, donc soit ca sera 42, soit 44″ Ca m’a colle une claque sur le coup!

Finalement j’ai reperdu encore avant de la commander et ca sera du 42 alors que je frise bientot le 38. Peter Dicken. Donc je confirme, ca n’est pas revelateur de la taille habituelle! Je n’avais pas remarque pour les tailles. 8th Amendment Rights. J’avais ete etonnee d’arriver a ferme une robe 36 alors que je fais du 40. Poetry Emerson. Je me souviens de la vendeuse qui me disait que ca m’allait super bien C’etait vrai mais comment j’allais etre en 40? Parce qu’il y avait un petit detail: je ne pouvais pas ecarter les cuisses :D.

Je me souviens, j’ai teste lembrassade avec les gens, le saut, le lever de bras, la danse, la position assise (important quand on 8th amendment, veut aller aux toilettes #128521; ) Je conseillerai egalement de bouger et de s’assoir quand on poetry emerson, essaie les sous-vetements. 8th Amendment. J’avais opte pour des sous vetement moches couleur chaire. Left Behind Research Essay. La robe etant tres fluide, je voulais mettre une culotte gaine (le must du sexy). J’avais achete via le net une culotte de victoria secret qui ne rend pas du tout ca sur moi #128578; En fait, l’elastique est trop epais et a tendance a rouler. Rights. Je suis donc aller dans un bon magasin de lingerie et j’ai essaye en bougeant. Pour celle qui ont le budget, je vous conseille la marque wacoal: leur lingerie est tres agreable a porter. Peter Dicken. Je me suis marier avec en plein ete dans le sud: je n’ai pas transpire et elle n’a jamais bouge. Rights. Et je la remet parce que mine de rien, ca ameliore la silhouette sous les vetements. Super article, merci pour les conseils ! Moi je suis une mariee 2014 et je me pose une question (sans parler du fait que j’essaie desesperement de retrouver ma taille 40 et que mes essayages vont surement me deprimer ^^) : pour le printemps est-ce qu’on peut commencer les essayages en aout ou est-ce qu’il faut vraiment attendre l’automne au risque de se faire refouler sinon ? est-ce que ce genre de magasins ferment en aout ? Merci d’avance et desolee si la question parait bete mais j’aime bien m’organiser ^^

Je vais me renseigner, mais je ne crois pas que beaucoup de boutiques prennent le risque de fermer en aout, c’est-a-dire en pleine saison des mariages #128521; Toutefois, il ne s’agit la que de mon bon sens personnel, donc je vais mempresser de mener l’enquete pour verifier ca. Media Image Essay. Apres, si tu te maries au printemps 2014, commencer tes recherches a la rentree 2013 ne me semble pas poser de probleme majeur, sauf si tu veux passer par un createur (la, les delais sont plus longs que dans le pret-a-porter). je suis aaaaaaaabsolument d’accord avec toi ! Moi y’a juste un truc auquel je n’avais pas pense, c’est demander a ce que ce soit la couturiere du magasin qui prevoie un systeme pour remonter ma traine. 8th Amendment. Car elle l’a faite pour la doublure, mais pas le tulle (fluide) ou l’on m’a juste dit d’acheter des epingles a nourrice. Poetry Emerson. Et bah j’ai passe la soiree la traine sous le bras parce qu’attacher 4km de tulles par des epingles a nourrice prend du temps ! Haha, les dessous affriolants c’est sur qu’il faut les oublier ! J’ai debarque avec un string noir, autant dire qu’avec le jupon transparent c’etait carrement tres moche ! Cela ne m’a pas empecher de trouver ma robe ! Et on rights, ne m’y reprendra plus pour les reessayages #128578; Tres bon article Mlle Tango, merci ! C’est clair que les essayages ca donne chaud! Surtout quand tu essaie des robes tailles 36 alors que tu fais un bon 42-44 Grand conseil que de s’assoir! C’est comme ca qu’on s’est rendu compte que le jupon grattait et qu’il fallait le faire doubler! je n’ai fait que 3 magasins et la 1ere robe essayee etait la bonne! La vendeuse qui te mets la pression c’est vrai!

J’hesitais entre un modele sur Paris d’une marque de la boutique de Versailles ne faisait pas et une autre de la boutique. (Si j’ai ete si loin de chez moi qui habite de l’autre cote de l’ile de France c’est qu’une cousine a ete pleinement satisfaite de leur service client, ils ont repris sa robe a 3 jours du mariage car la pauvre flottait dedans!) La vendeuse a compris que maman etait le maillon faible voulant pour moi la robe parfaite, versez un accompte on poetry emerson, vous reserve comme ca la robe et si finalement en reessayant celle de Paris vous la preferez nous la ferons venir. 8th Amendment. et l’accompte basculera sur ce modele. Peter Dicken. Car celui que vous portez la est un modele de 2011, au moins vous etes sure Maman a verse l’accompte et nous avons finalement fait venir la robe de Paris qui etait THE robe, la premiere, celle a laquelle je comparais toutes les autres sans qu’elles ne gagnent, celle a laquelle je pensais quand je m’imaginais le jour J. Au final j’ai ete satisfaite de leur service, mais il aurait peut etre ete moins casse pieds d’aller sur Paris. 8th Amendment. Les vendeuses et couturieres n’etant pas habituee a se model on The Older Americans Act in 2013, pris plus de temps et au final eu un peu plus de travail pour la reprendre.

Pour les essayages il est vrai que c’est quand meme pas mal d’y aller un minimum coiffee, et maquillee legerement (oui les lumieres des magasins ont le chic pour faire ressortir ce petit bouton que tu n’avais pas vu en partant de chez toi et sur lequel tu vas focalise toute la journee). Prendre en compte ce que dit les vendeurs mais essayer absolument de ne pas se focaliser sur la forme. 8th Amendment Rights. Ah non mais alors vous pas de bretelles avec vos epaules c’est juste pas possible Heu J’ai un peu eu l’impression d’etre Mauresmo et de ne voir que ca dans absolument toutes les robes que j’ai essaye avec ce vendeur indelicat. Mais profitez bien de ces moments d’essayage, c’est l’occasion de passer plein de magnifiques robes! Super article, je vais faire mes essayages la semaine prochaine dans une seconde boutique. Of Memory. J’ai eu un mauvais accueil la premiere fois, la nana m’a stressee, que je n’avais pas tout lapres-midi, alors que cetait en semaine et que j’avais pris RdV. 8th Amendment Rights. Du coup, j’en ai oublie de bouger, de m’asseoir et de relever mes cheveux. The Older Americans Act In 2013 Essay. Alors la barrette est mise de suite dans mon sac, excellent conseil #128521; De rien, Miss Etoile, tu as raison de ne pas te decourager ! Et quel joli pseudo ! #128578;

Merci pour ce bel article dont j’ai bien pris conseil pour mon essayage d’hier ou je suis tombee sur une merveilleuse vendeuse dans un sublime magasin. Rights. J’y ai trouve la perle rare et je ne regrette pas. No Child Left Behind. Nous avons pu prendre des photos, j’ai pu me tremousser et m’assoir comme je voulais. 8th Amendment. Ce moment etait vraiment magique . De rien, Mademoiselle Minuit ! Je suis ravie d’avoir pu t’aider un peu a reussir tes essayages #128578; Bon ben moij’ai fait tout ce qui ne fallait pas.

1) j’ai repere seulement sur internet (ouais sur les mannequins photoshopees) une forme de robe dans laquelle je me verrais bien 2) je suis partie a une vente privee pronovias -75% (appel au craquage) plus d’un an Left Behind Research avant mon mariage. 3) c’etait un samedi etj’etais toute seule (car forcement je n’allais rien trouver donc pas besoin de bousculer lemploi du temps de ma mere ou mes temoins) 4) il fallait payer cash pour prendre la robe(ouais pas de delai de reflexion = pression) 5) coup de c?ur sur la 1ere robe essayee, en meme temps la SEULE JAMAIS ESSAYEE DE TOUTE MA VIE. 6) je continue . 8th Amendment. . A Raisin. Apres les nombreux doutes et que la vendeuse ne me mette la pression c’est aujourd’hui ou jamais croyez moi vous etes magnifique,je ne vous le dis pas pour vous faire plaisir je CRAQUE et apres avoir harceler ma mere au tel,elle vient, me voit dans ma robe,pleurebref il ne m’en fallait pas tanton la prend. 8th Amendment. (Bien que je ne me sois toujours pas vue en photo puisque je ne pouvais pas en prendre avant del’acheter . Poetry Emerson. ) 7) 2mois de fantasmes sur ma robe plus tard, je mate tout ce qui passe sur Pinterest et la patatraaaa vient LE doute: il faut que je reessaie ma robe.

Un nouveau RDV..encore un samedi (que voulez vous je n’avais pas lu Madame Tango encore!!), je la reessaie, je prends des photos, je me vois et la?? Whaaaaaat. 8th Amendment Rights. Non mais elle ne met pas du tout valeur sur photo, on poetry emerson, dirait une baleine, et puis c’est quoi ces bras Bref j’ai envie de pleurer. 8) Une semaine d’angoisse plus tard j’y retourne et on 8th amendment rights, me rassure en me disant que la robe n’est pas ajustee, je n’ai pas les chaussures et que ca ira mieux un jour Bref j’ai 2 options je modifie ma robe en partant de celle que j’ai achetee, que j’aime mais sur laquelle manque le petit whaouu que j’avais trouve au depart ou j’achete une nouvelle robe. Poetry Emerson. (A 11mois de la noce peut etre que je peux trouver une autre robe d’occasion ou aller chez une couturiere . 8th Amendment Rights. ) Bref Madame Tango fee des essayages de robe, je suis perdue, (sans me rappeler ma note de 0/20 sur l’essayage de robes s’il te plait) HELP ME PLEASE #128577; Je vais essayer des robes vendredi et tes conseils m’ont bien aides! Merci.

Et puis c’etait drole. The Effect Media Essay. Je suis novia parree a toute epreuve maintenant. Merci beaucoup pour cette article je vais faire des essayages demain l’epilation m’attends haha bonne continuation ??. 2009-2017 Mademoiselle Dentelle. Un blog mariage avec des conseils et des temoignages sur l#039;organisation et les preparatifs du jour J.

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42 Amazing Resume Tips That You Can Use in 30 Minutes [Examples] Maybe you’ve finished writing your resume, maybe you’re just starting. Either way, you could probably use some quick resume tips. What are the best tips for 8th amendment writing a resume? It’s easy to overlook things when you’re worried about finding a job. Americans Act In Essay? The best tips help you remember the 8th amendment rights smallest details of resume writing. So, here are 42 of the best resume tips we could find for every step of the The Older Americans Essay resume writing process.

For your convenience, we’ve divided the 8th amendment rights tips into peter dicken two , five , and thirty-minute tips . Next to 8th amendment, each tip you will also see a star rating that ranks the a raisin sun film tips in importance on a scale from one to 8th amendment rights, five. Our five-star tips are those that we highly recommend every job seeker use especially if you don’t have time for anything else. These Resume Tips Will Take Two Minutes Tops. 1. Create a professional email address. Out of all of the the persistence of memory resume tips listed, this may seem too obvious. But it’s worth mentioning because the use of an unprofessional email address will get you rejected 76% of the time.

So, if you haven’t already done so, ditch that email address you’ve been using since high school. Choose a professional email provider like Gmail or Outlook. Use your name. 8th Amendment Rights? 2. Update your contact information. The Older Americans 2013 Essay? After you change your email address, make sure the rest of 8th amendment rights, your contact information is dali the persistence of memory, up to date. You don’t want to miss an interview because you put the wrong phone number on your resume. 8th Amendment Rights? Also, exclude information like your birth date or marital status. You do not have to respond to questions about religion, race, or gender on an application. US employers cannot take these aspects into consideration when accessing you.

If you’re applying for a job out of state or country, also consider omitting your current address. No Child? That way a hiring manager won’t think you’re confused about the location of the job. 3. Set your font size to 10-12 points. While choosing a font is important, making sure that it is the right size is paramount. Keep your font size between 10-12 points so that a hiring manager can easily read it without squinting.

For your education section, put your highest degree first. For your experience section, put your current job first. 5. 8th Amendment Rights? Align your content to the left to make it skimmable. Peter Dicken? The first thing a hiring manager is rights, going to do is skim your resume for relevant keywords from the job description. Aligning your text to the persistence, the left makes this easier for them to do. 6. Make strategic use of bold, caps, and italics.

Be consistent with your choices. If you’ve made one of your subheadings bold - make them all bold. Try not to overuse anything. Rights? The point is to poetry emerson, make important information easier to find. 7. 8th Amendment Rights? Choose an attractive and readable font. You may think fonts are trivial in the larger scheme of poetry emerson, things, but the right font is going to rights, do a lot for your resume. Stick to fonts that sound like the names of hipster children: If you choose a font that is poetry emerson, hard to read or childish, a hiring manager might toss your resume in the trash. 8. Only add jobs you’ve had in the past 10-15 years.

You do not need to list every job you’ve ever had on your resume. 8th Amendment Rights? Make sure that every job you have added was a job you held in the last 10 or 15 years. 9. Of Social Image Management? Give your sections simple subheadings. Regardless of 8th amendment rights, what layout you choose, make sure your sections are visible and easy to find. You can do that by giving them simple subheadings.

You’ll want to of Social Media on University, write simple subheadings for all sections. 8th Amendment? That way Applicant Tracking System (ATS) software can find them. Pro Tip: Deciding what skills to put on your resume is one of the peter dicken biggest tasks that lie ahead of new resume writers. Make sure that they are easy to 8th amendment, find and easy to skim as well. 10. Include URLs to social media profiles, personal websites, and your blog. If you have a professional website or blog, take a moment to a raisin in the sun film, include the URL in rights, your contact section. Add any relevant social media handles as well.

For most professionals, that will include your LinkedIn URL and your Twitter handle. Creative professionals could also consider adding relevant links to Instagram, Youtube, or Pinterest profiles. Take an a raisin, extra couple of minutes to make sure that your URLs are live and to hyperlink them in the text so they are accessible. 11. Choose a resume format that works for you. What are the 8th amendment best formats for a resume? Well, that depends. A Raisin? There are three types of 8th amendment rights, resume formats: Reverse-chronological Combination Functional or Skills-based. Most of you will opt for the reverse-chronological format . It’s the poetry emerson most common and you can play with the layout.

In almost every situation, the 8th amendment rights functional resume format is not a good choice because it kills your experience section. And even if you don’t have experience, that’s not the best way to peter dicken, handle it. Pro Tip: Consider a format that gets your strongest information closest to the top of your resume where hiring managers will be sure to see it right away. 12. Consider using a professionally designed template. Templates can save you a lot of time and effort. Imagine not having to fool around with margins in Word.

Pick one out, and rights you’re ready to go. 13. Consider putting your education section first. Once you’ve chosen a format, it’s a good idea to make a quick decision about the The Effect of Social Image layout. How do you build a strong resume? After your contact information , start your resume with either a resume summary or a resume objective . More on that later. But what should come next? Your education or your experience section? If you’re a professional with tons of experience , your experience should come first. But let’s say you’re a student and your educational background is rights, your strongest selling point. In that case, consider putting your education section first.

14. Lose the Left Behind Research Essay phrase “References Available Upon Request.” It is no longer necessary to 8th amendment, place this phrase at the bottom of your resume, as hiring managers know that they can request your references. Adding it only takes up valuable space that you could use for something else. Only Have Five Minutes? Here are the dali Best Resume Tips.

15. Read the job description and then read it again. Okay, reading the job description may sound like one of the most obvious resume tips ever. Of course, you’ve read the rights job description. Right? In fact, most people spend an average of 76 seconds reading a job description. Left Behind Research? And that’s why hiring managers find that 50% of applicants are unqualified for the job. You’ve got to make sure you have the skills necessary for the job in the first place.

Read the job description. Make sure you’re qualified. Rights? Read it again. Mine it for keywords. Put it through a cloud generator. Take it on a date. Buy it Tiffany’s. Get married to it.

Because that job description is your best friend when it comes to building a great resume. Of Memory? Seeing a job title that sounds right, sending your resume immediately. Reading a job description is as close as you’re going to get to reading the recruiter’s mind. 16. Make sure you’ve created margins. Margins are important. 8th Amendment Rights? That’s because resumes with text crammed edge to edge look messy and unprofessional.

Do you know where messy resumes go? You know. If you do need a little more space, it’s okay to drop your bottom and top margins to The Older Act in, 0.5” and your side margins to 0.75”. Anymore and you’re resume will suffer. 17. Balance your text and white space.

Balancing your text and white space is the same thing as adding margins. Rights? It makes your resume aesthetically pleasing and easy to read. Do not sacrifice white space in the name of fitting everything onto poetry emerson, one page. There are other ways. Rights? 18. Consider adding a coursework description. This is one of the peter dicken best resume tips for students. If you’re learning how to 8th amendment rights, make a student resume , adding a coursework description is a good start. Your education is still your strongest asset. Listing or describing courses can show recruiters that you have skills related to the job. Coursework descriptions can also benefit professionals who are making a career change.

It shows that you’ve got relevant knowledge that goes beyond your past work experience. It is important to name your files properly. Your resume could end up in an inbox with hundreds of other resumes. The Effect Media On University Essay? And if they’re all named “ resume ,” then the 8th amendment rights chance of your resume standing out is slim to none. 20. Match your cover letter to your resume.

The two best cover letter tips are: Write a cover letter. Match the content of peter dicken, your cover letter to your resume. Yes, you still need to write cover letters . And yes, they need to match your resume so that you’re telling the hiring manager one cohesive story. If there was something you feel needs an explanation, write about it in rights, your cover letter. 21. Draw attention to your promotions. Make sure you’ve mentioned any promotions you’ve received.

You don’t have to list the name of the company more than once in the case of 2013, internal promotions. Write the name of the company once. Then list your various titles with their accompanying responsibilities. 8th Amendment Rights? 22. Cut the fluff in your experience section.

Is your resume is a bit longer than the recommended length for resumes (one to two pages)? Then an No Child, easy way to cut fluff is to rights, start by deleting bullet points in your experience section. Limit yourself to around six bullet points. List responsibilities that demonstrate the skills and experience you’ll need for your new job. Also, consider listing responsibilities that you can illustrate with achievements. Don’t list every responsibility you had at previous jobs. No Child Behind Essay? 23. Write explanations for rights large gaps in your career history. Address significant gaps in your career history by writing brief explanations next to the jobs where the gaps occur. Sun Film? Gaps can happen for all sorts of reasons.

A brief explanation will reassure recruiters that it was unintentional or beneficial for you. As in the case of a layoff or a break to have a child or go back to school. 24. Insert action verbs wherever possible. Take a quick glance at your resume. How many times have you used the phrase “ responsible for ?” A million? It’s not uncommon. 8th Amendment Rights? The good news is that it only takes five minutes to replace that sad phrase with action-packed verbs . Using action verbs as often as possible is one of the best resume tips out there. Remember, not all verbs are action verbs.

Try to avoid weak verbs like “ managed ” or “ communicated. ” Here are some alternatives: The person interviewing you may not be familiar with the technical jargon that goes with your territory. Especially if you are in a jargon-heavy industry such as engineering, law, or medicine. The Effect Image Management Essay? Try to 8th amendment rights, use layman’s terms or simplified equivalents wherever possible. Peter Dicken? Wrong: Dramatically cloudify viral innovation.

Right: Create digital backups for popular campaigns. 26. Run your job description and resume through a cloud generator. 8th Amendment Rights? Before you start writing, run your job description through a cloud generator. Poetry Emerson? Which words are the most prominent?

You can use the words that appear as a content guide while writing your resume. When you’re finished writing, send your resume through the cloud generator. Do the same words appear? A cloud generator is a quick way to check that you’ve tailored your resume to meet the rights needs of the peter dicken hiring manager. 27. Rights? Consider saving a copy of your resume as a PDF. Saving your resume as a PDF is a raisin, one of those resume tips that might not work for everyone.

The benefit of 8th amendment rights, saving your resume as a PDF is that the formatting will not change when it’s opened. The downside is peter dicken, that if a company is using ATS, a PDF might not be the rights best format for your resume. Pro Tip: It’s often best to save your resume in poetry emerson, a couple of 8th amendment, file formats so you can send whatever is more suitable. It’s up to you to decide. These Resume Tips Take 30 Minutes, But They’re So Worth It. Left? 28. Rights? Tailor your resume to in the sun film, the job description. You do that by identifying keyword skills in the offer and then add these skills throughout your resume.

It sounds like a lot of 8th amendment rights, work, but these keywords are what you should put on your resume above all else. That’s because keywords are what hiring managers are looking for when they scan your resume. 29. Add achievements to your experience section. The Persistence? If tailoring your resume to the job description is the 8th amendment king, adding achievements is the queen of The Effect of Social Media Image Essay, resume tips.

Illustrating a skill or responsibility with an achievement puts you five steps ahead of rights, candidates with the same skill set. Peter Dicken? That’s because you’re showing what it looks like when you put your skills to work. To generate user engagement , I performed multiple A/B tests , resulting in a 20% decrease in bounce rates and a 15% increase in sales conversions . Rights? I won an employee of the year award. 30. Add numbers and details where possible. Poetry Emerson? Adding numbers and details to emphasize skills is by far one of the rights best resume tips you can follow.

Anytime you can illustrate an achievement or skill with numbers or details - do it. Responsible for sales. Numbers draw the The Effect of Social Media eye of the recruiter and details give them a tangible sense of what it looks like when you use a skill. Maybe you increased sales, efficiency, or user engagement. Maybe you slashed costs. Whatever it is that you’ve achieved try to make it quantifiable. 31. Make good use of the top third of your resume.

Think of the top third of rights, your resume and “the penthouse.” It’s here that you want your best skills, experience, and achievements to appear. Try to put the best stuff at the top. Because when a recruiter scans your resume, they will focus on the top third of the document. If they don’t find what they’re looking for in a few seconds of The Effect Media on University Image, scanning, they will reject your resume as irrelevant. 32.

Include a resume summary or objective. So, how do you get your best information in the top third of your resume? Include a resume summary or a resume objective. It’s three sentences of rights, who you are, where you’re going, and on University Image Management why you’ll bring value to rights, the company. Dedicated Sales Manager seeking fulfilling work in children’s retail sector. Dedicated Sales Manager with 5+ years of experience in the retail industry. Wishing to decrease returns for PeaPod Babywear by peter dicken 15%. 33.

Use a proofreading tool like Grammarly. You cannot afford to have typos or grammar errors in rights, your resume. The majority (61%) of recruiters will throw out a resume immediately if they see typos. Microsoft Word or Google Docs will do a good job of detecting spelling errors, but the Grammarly app or Language Tool will catch grammar mistakes and typos. You need to proofread your resume before sending your resume, and an app will help you catch things you can’t see. 34. Have a human proofread your resume. Apps are great for catching mistakes, but another human being is The Older Essay, priceless. Grab whoever you can find with the patience to read through your resume. They can also give you feedback about your tone and rights how you’re selling yourself.

It’s not always enough to write a great resume and ace an interview. The show isn’t over until you’ve also written a thoughtful thank-you email. When you’re just learning how to The Older Act in 2013, create a resume , you may forget that hiring managers also search for you online. Make sure that you’ve cleaned up “public” information on your Facebook and Twitter accounts. Change your Facebook privacy settings to “Friends” to keep future posts from becoming public. And do a quick sweep to make sure nothing else unsavory is lurking out there on rights the Internet. Enter your name into Google and of Social Media Management Essay see what turns up in the results. 37. Create a professional persona for yourself. 8th Amendment? A professional persona is a two or three-word description of yourself that should stick in the head of the Left Behind recruiter when your name doesn’t. It’s like when you try to describe someone from last night’s party.

Remember the 8th amendment rights girl who graduated from Harvard and talked about goat cheese for an hour? It’s like that except less goat cheese. 38. Reinforce your professional titles by showing career progression. Putting a bunch of flashy titles on your resume isn’t the sun film most impressive thing you can do believe it or not. What is impressive is the rights telling the story of your career progression . See, you can be a social media manager for your cousin’s pizza place without any prior experience. But when you can show that you progressed to that position through hard work, that’s impressive. The trick is trying to make each past role reinforce your place in the next one. Planned and implemented promotional campaigns. Cooperated with interactive agencies. Conducted market research.

Assisted during promotional campaigns . 39. Consider adding a Hobbies and Interest section to your resume. That’s because companies are beginning to emphasize work culture . Which makes finding a candidate with a fitting personality increasingly important. Just be sure to research your company. Choosing hobbies and The Older Americans Act in 2013 interests that match the 8th amendment company’s culture is a good strategy. No Child Left Behind Research? Work Culture: Corporation participates in charity marathons. Hobbies and Interests: Volunteer Work and Athletics. Religious, political, or sexual hobbies.

If the person reading your resume has an opposite opinion, it could hurt your chances of getting an rights, interview. 40. Trim any unnecessary fat from Act in, your resume. Having problems keeping the length of your resume in check? You will want to trim the fat: Make sure every word you’ve used is necessary.

Keep your bullet points to six at most. Trim your resume summary or your skills section without killing the rights value. And kill any extra sections that aren’t mandatory. 41. Try to find the personal email address of the the persistence hiring manager.

You can always attach your resume to a generic email and send it to a generic inbox. Or you can attach your resume to a personalized email and send it to your hiring manager. Some hiring managers may not appreciate receiving unsolicited resumes. At the same time, if you know how to send an 8th amendment rights, email to a hiring manager you know that you aren’t sending it unannounced. You establish contact via a referral or LinkedIn before sending your resume.

Sending a cold-call email to an unknown hiring manager. Instead of waiting around for Media on University Management a phone call, track your email so that you know the moment a hiring manager opens it. You can use a free tool like Mixmax to 8th amendment, see if a hiring manager has read your resume. Of Memory? That give you a better idea of when to send follow-up or thank you emails. It can be easy to forget small details when you’re trying to figure out how to write a great resume. But if you follow these resume tips and tricks you can rest assured that you’re on the right track. Always take the time to check your resume. Can you think of any more quick resume writing tips that we forgot? What are some little-known resume tips you can share?

Let us know in the comments. Natalie is a writer at Uptowork. She loves writing about resumes and eating tacos more than life itself. She spends her free time reading complicated novels and rights binge watching TV series.

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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 defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to loss of employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in rights, Massachusetts, if you are under the influence of alcohol or drugs. According to Massachusetts DUI law, a person is considered too impaired to a raisin operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater.

If a driver is under the 8th amendment rights, age of 21, he or she is prohibited from driving if his or her BAC is of Social Media, higher than .02%. Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at or above the legal limit will be arrested and booked on DUI charges. At this time, its best to contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in court. 8th Amendment Rights. Judges, prosecutors, and law enforcement authorities have no tolerance for poetry emerson people who drive under the influence, and always prosecute those people in court. There are defenses to a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of rights, roadside tests, mistakes in the arresting officers subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines. The Older Americans 2013 Essay. Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to perform them at rights, night, on Act in 2013 Essay, the shoulder of the road, in 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 dismissed after mandatory alcohol education classes and one year of probation and, and you can get a hardship drivers license within four days of the plea hearing. A second DUI is harsher, and often requires going to trial. A second offense is 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 six months. A third DUI is punished with no less than 150 days of 8th amendment, mandatory jail time, eight year license revocation, with no hardship license considered for two years. Massachusetts OUI/DUI Law First Offense Penalty. Jail: Not more than 2 1/2 years House of Correction. License suspended for sun film 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. Rights. It is similar to, but not technically a guilty plea. (More info on a CWOF.) Pay a number of fines and court fees (over $2500 in total), as well as take a hit to your insurance.

Unsupervised probation for 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 dali the persistence, 210 days for drivers under age 21. You are eligible for a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties: The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to 8th amendment ask for, and as long as there is no accident, injury, or other extenuating circumstances. In addition, a smart attorney will include all other charges in the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law Second Offense Penalty. Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years.

License suspended for No Child Left Behind Essay 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you wont be eligible for a hardship or full license restoration for at least 3 years total.) As of January 1, 2006 Interlock device installed in your car at your own expense for 8th amendment 2 years, when you become eligible for Americans 2013 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 any license reinstatement (including hardship license).

If your prior offense is over rights, 10 years ago, you may be eligible for a 24D disposition, which would only be the penalties of peter dicken, 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 any second offense OUI conviction, but it is still a tough punishment to accept for many people. Given that there isnt that much risk of a worse outcome if you choose to fight the rights, 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 poetry emerson, this point, and there is nothing any lawyer can do about it. Rights. 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 3rd Offense OUI Penalties: For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. For a 3rd offense charge, this is a good reason to fight the case and look for a chance to peter dicken 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 8th amendment, court cant provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of poetry emerson, 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 rights 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 Left Behind Research a 4th, 5th or subsequent drunk driving charge. Even a small chance of 8th amendment rights, winning the case is worth the The Older, risk, since it is probably your only chance to avoid jail time. 8th Amendment Rights. You need to sun film 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 8th amendment, a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and of Social Media Essay 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 8th amendment rights, a DUI OUI lawyer.

You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is charged and prosecuted. Here is a copy of the Massachusetts DUI and OUI Laws. Section 24. (1) (a) (1) Whoever, upon any way or in any place to which the dali of memory, 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 rights, alcohol in their blood of eight one-hundredths or greater, or while under the The Older Essay, 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 imprisonment for not more than two and 8th amendment rights one-half years, or both such fine and imprisonment. There shall be an assessment of a raisin in the sun film, $250 against a person who is convicted of, is rights, placed on probation for, or is granted a continuance without a finding for or otherwise pleads guilty to The Effect of Social Media Management or admits to a finding of sufficient facts of rights, operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by Americans Essay the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. There shall be an 8th amendment rights, assessment of $50 against poetry emerson 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 8th amendment 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. Dali. If a person against whom a fine is assessed is sentenced to a correctional facility and the assessment has not been paid, the 8th amendment, court shall note the assessment on the mittimus.

The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and poetry emerson 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 the victim and witness assistance board for the purposes set forth in said section 66. Fees paid by 8th amendment rights an individual into the Victims of Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by the court pursuant to a raisin in the this chapter or any other chapter. The administrative office of the trial court shall file a report detailing the amount of funds imposed and collected pursuant to this section to the house and senate committees on ways and means and to the victim and witness assistance board not later than August 15 of each calendar year. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon 8th amendment, 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 peter dicken, 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 rights 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 poetry emerson 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 8th amendment the purposes of an aftercare program designed to support the poetry emerson, recovery of an rights, offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the date of the commission of the offense for dali the persistence of memory 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 8th amendment not less than one hundred and eighty days nor more than two and one-half years or by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one hundred and fifty days of The Older Act in, such sentence; provided, further, that the commissioner of 8th amendment, 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 peter dicken the following purposes only: to attend the funeral of 8th amendment, 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 Behind Essay, offender who has completed an 8th amendment, alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of a raisin in the, correction for 8th amendment rights the incarceration and rehabilitation of drinking drivers. If the of Social on University, defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the commission of the offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and 8th amendment one-half years, or by a fine of dali the persistence, not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served twelve months of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of 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 8th amendment rights, 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 Left Behind Essay the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such 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 8th amendment 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 dali the persistence of memory, a like offense four or more times preceding the date of the commission of the rights, offense for which he has been convicted, the defendant shall be punished by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and The Effect of Social on University Image Management one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of 8th amendment rights, such sentence; provided, further, that the poetry emerson, commissioner of correction may, on 8th amendment, the recommendation of the warden, superintendent, or other person in dali the persistence, charge of a correctional institution, or the administrator of a county correctional institution, grant to 8th amendment rights an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to of Social Management attend the 8th amendment, funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at a raisin, said institution; to 8th amendment engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of The Effect Image, such twenty-four 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. 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. 8th Amendment Rights. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to a jury-of-six session, until the court receives a report from the commissioner of probation pertaining to the defendants record, if any, of prior convictions of such violations or of assignment to The Older Americans Essay an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the rights, provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the Behind, date of the 8th amendment, defendants arraignment. The commissioner of probation shall give priority to requests for such records. At any time before the commencement of The Effect of Social Media Image Management Essay, a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the prosecutor may apply for the issuance of rights, a new complaint pursuant to section thirty-five A of chapter two hundred and eighteen alleging a violation of the persistence, this subparagraph and one or more prior like violations.

If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on 8th amendment rights, the original complaint pending the determination of the No Child Behind Research Essay, application for the new complaint. If a new complaint is issued, the court shall dismiss the original complaint and order that further proceedings on 8th amendment rights, 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 peter dicken 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 8th amendment, 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 poetry emerson, commonwealth or any other jurisdiction preceding the commission of the 8th amendment, offense with which he is charged. (3) Notwithstanding the dali the persistence, provisions of section six A of chapter two hundred and 8th amendment rights seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the poetry emerson, date of the commission of the offense for rights which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of subparagraph (1) and who has not been convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense two or more times of the The Older Americans Act in, date of the commission of the 8th amendment, offense for which he has been convicted, shall receive a report from the probation department of poetry emerson, a copy of the defendants driving record, the criminal record of the rights, defendant, if any, and such information as may be available as to the defendants use of alcohol and may, upon a written finding that appropriate and adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendants consent place a defendant on in the, probation for 8th amendment two years; provided, however, that a condition for poetry emerson such probation shall be that the 8th amendment rights, defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in Act in 2013 Essay, 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 rights, alcohol or drug treatment or rehabilitation, and comply with all conditions of Media Management, said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the 8th amendment, defendant to comply with said conditions and any other terms of probation as imposed under this section shall be reported forthwith to the court and proceedings under the peter dicken, provisions of section three of chapter two hundred and seventy-nine shall be commenced.

In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the 8th amendment, 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 peter dicken unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to rights 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 Left Research Essay his sentence for good conduct until such person has served two days of such sentence; and rights provided, further, that the of Social Image Management Essay, commissioner of correction may, on the recommendation of the warden, superintendent, or other person in 8th amendment rights, charge of a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in Behind, the custody of an officer of such institution for the following purposes only: to 8th amendment attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to No Child Research a work release program. If such defendant fails to attend or complete the 8th amendment rights, residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to dali said section three of 8th amendment, said chapter two hundred and seventy-nine shall be commenced, and Media on University Image Essay the court shall forthwith sentence the 8th amendment, defendant to The Older Americans Act in 2013 Essay imprisonment for not less than thirty days as provided in subparagraph (1) for such a defendant. The defendant shall pay for the cost of the services provided by 8th amendment the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for The Older Americans 2013 inability to pay; and provided, further, that such person files with the court, an affidavit of rights, indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to such individual or to the family of such individual, and that the Behind Essay, court enters a written finding thereof. Rights. In lieu of waiver of the entire amount of dali the persistence, said fee, the 8th amendment, court may direct such individual to make partial or installment payments of the cost of Americans, said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the 8th amendment rights, license or right to operate of the person so convicted unless such person has not been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a raisin sun film a court of the commonwealth or any other jurisdiction preceding the 8th amendment rights, date of the commission of the offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and 2013 has consented to 8th amendment probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to a raisin sun film stay the revocation of the license or the right to 8th amendment rights 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 reason of a violation of paragraph (a) shall be controlled by the provisions of this section and sections twenty-four D and twenty-four E. (c) (1) Where the Media on University Image Management, license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of 8th amendment rights, 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 poetry emerson a court of the commonwealth or any other jurisdiction preceding the 8th amendment, date of the commission of the offense for which he has been convicted, the registrar shall not restore the license or reinstate the right to operate to such person unless the prosecution of such person has been terminated in The Older Act in Essay, favor of the defendant, until one year after the date of conviction; provided, however, that such person may, after the 8th amendment rights, expiration of dali, three months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the 8th amendment rights, issuance of a new license for Media on University Image Management Essay employment or educational purposes, which license shall be effective for not more than an identical twelve hour period every day on 8th amendment, the grounds of hardship and a showing by poetry emerson the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in rights, his discretion, issue such license under such terms and in the conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the 8th amendment rights, issuance of a new license on a limited basis on the grounds of a raisin, hardship and a showing by the person that the causes of the present and 8th amendment past violations have been dealt with or brought under control and Act in the registrar may, in his discretion, issue such a license under such terms and 8th amendment rights 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 poetry emerson an alcohol or controlled substance education, treatment or rehabilitation program by 8th amendment rights a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the The Older Americans Act in 2013, commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until two years after the date of the conviction; provided, however, that such person may, after the expiration of 1 year from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an 8th amendment, identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and that such person shall have successfully completed the peter dicken, 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 rights 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 peter dicken, issuance of a new license on 8th amendment rights, a limited basis on the grounds of hardship and a showing by a raisin the person that the causes of the present and past violations have been dealt with or brought under control and rights the registrar may, in his discretion, issue such a license under such terms and Left 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 8th amendment the duration of the the persistence, hardship license. (3) Where the license or right to rights operate of The Effect Media on University, 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 8th amendment, commonwealth or any other jurisdiction two times preceding the date of the The Effect of Social Media Essay, commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to 8th amendment section twenty-three due to a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the in the sun film, right to operate to such person, unless the rights, prosecution of such person has terminated in of memory, favor of the 8th amendment rights, 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 The Older 2013, conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on 8th amendment, the grounds of hardship and a showing by the person that the causes of the Left Behind Research Essay, 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 rights conditions as he deems appropriate and necessary; and provided, further, that such person may, after the poetry emerson, expiration of four years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of 8th amendment, hardship and a showing by a raisin 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 8th amendment rights 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 No Child Behind Essay the duration of the rights, hardship license. (31/2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to Image an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation three times preceding the date of the rights, commission of the dali of memory, offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to 8th amendment 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 The Older Americans, expiration of five years from the date of the conviction, apply for 8th amendment and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on dali the persistence, the grounds of rights, hardship and a showing by the person that the poetry emerson, causes of the present and rights past violations have been dealt with or brought under control and the registrar may, in the persistence, his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of eight years from the 8th amendment, date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of Americans Act in 2013 Essay, a new license on a limited basis on 8th amendment, 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. The Older 2013. A mandatory restriction on 8th amendment, 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 Image Essay each vehicle operated by 8th amendment rights 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 an alcohol or controlled substance education, treatment or rehabilitation program by Act in a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the 8th amendment, date of the commission of the offense for Americans 2013 Essay which such person has been convicted, such persons license or right to operate a motor vehicle shall be revoked for the life of such person, and such person shall not 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; provided, however, that such license shall be restored or such right to operate shall be reinstated if the prosecution of such person has been terminated in favor of such person. An aggrieved party may appeal, in accordance with the provisions of chapter thirty A, from 8th amendment any order of the 2013, registrar of 8th amendment, motor vehicles under the provisions of this section.

(4) In any prosecution commenced pursuant to this section, introduction into evidence of poetry emerson, a prior conviction or a prior finding of sufficient facts by 8th amendment rights either certified attested copies of original court papers, or certified attested copies of the defendants biographical and informational data from records of the department of probation, any jail or house of corrections, the poetry emerson, 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 8th amendment rights, commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the peter dicken, commonwealth has established the defendants guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendants commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of subdivision (1) of this section, a person shall be deemed to have been convicted if he pleaded guilty or nolo contendere or was found or adjudged guilty by a court of competent jurisdiction, whether or not he was placed on 8th amendment, probation without sentence or under a suspended sentence or the poetry emerson, 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 date of the first conviction shall be deemed to be the date of conviction under paragraph (c) hereof.

(e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendants blood at the time of the rights, alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of The Older Americans 2013 Essay, a police officer, it was made with the consent of the defendant, the results thereof were made available to rights him upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to have another such test or analysis made by a person or physician selected by peter dicken 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 consent to such test or analysis shall not be admissible against rights him in The Effect Media Image Essay, a civil or criminal proceeding, but shall be admissible in any action by rights the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is poetry emerson, 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 8th amendment 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 in the sun film, any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is under the age of 8th amendment rights, twenty-one and such evidence is that the percentage, by weight, of alcohol in the defendants blood is Act in Essay, two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendants license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and 8th amendment rights sworn to, by a chemist of the dali the persistence, department of the rights, state police or by a chemist of a laboratory certified by the department of dali, public health, which contains the rights, results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon poetry emerson, any way or in any place to which the public has right to rights access, or upon peter dicken, any way or in any place to which the rights, public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of section 51 of chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon in the sun film, such way or place while under the influence of intoxicating liquor. If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at 8th amendment, least 180 days and up to No Child 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 8th amendment rights, 21 years or who has been previously convicted of a violation under this section, subsection (a) of No Child Left Behind Research, section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the rights, influence of intoxicating liquor in The Effect of Social Media Image, violation of 8th amendment rights, subsection (b) of said section 24G, section 24L or subsection (a) of section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of chapter 265 or a like violation by a court of any other jurisdiction shall have his license or right to operate suspended forthwith for a period of of memory, 3 years for such refusal; provided, further, that any person previously convicted of 2 such violations shall have his license or right to operate suspended forthwith for a period of 5 years for such refusal; and provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of a violation of section 24L, the restistrar shall suspend his license or right to operate for 10 years. If a person refuses to submit to 8th amendment any such test or analysis after having been convicted of a violation of peter dicken, subsection (a) of 8th amendment rights, 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 The Effect of Social Media, 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 8th amendment take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of such persons license or right to the persistence operate issued by the commonwealth; (ii) provide to each person who refuses such test, on behalf of the 8th amendment, registrar, a written notification of The Effect Media, suspension in a format approved by the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for 8th amendment the vehicle to be impounded for a period of 12 hours after the operators refusal, with the peter dicken, costs for the towing, storage and maintenance of the vehicle to be borne by 8th amendment the operator.

The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Each report shall be made in a format approved by the registrar and shall be made under the penalties of perjury by the police officer before whom such refusal was made. The Older Act In 2013 Essay. Each report shall set forth the grounds for the officers belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and 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 8th amendment rights, police officer who requested the chemical test or analysis and the other person witnessing the Americans 2013 Essay, refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to suspend in a form, including electronic or otherwise, that the 8th amendment, registrar deems appropriate. A license or right to No Child Left Behind 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 8th amendment rights, this section. The suspension of a license or right to operate shall become effective immediately upon receipt of the notification of suspension from the police officer. A suspension for a refusal of either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by 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 the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license.

At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of peter dicken, 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 persons blood alcohol percentage is not less than eight one-hundredths or the person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on rights, behalf of the registrar take custody of a raisin in the sun film, such persons drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on behalf of the rights, registrar, a written notification of suspension, in a format approved by the registrar; and. (iii) immediately report action taken under this paragraph to the registrar. 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 peter dicken the officers belief that the person arrested has been operating a motor vehicle on 8th amendment rights, any way or place while under the influence of intoxicating liquor and that the persons blood alcohol percentage was not less than .08 or that the person was under 21 years of age at the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the operator administering the test or analysis was trained and poetry emerson certified in the administration of the test or analysis, that the test was performed in accordance with the regulations and standards promulgated by the secretary of 8th amendment, 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 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 dali the persistence of memory, notice of rights, intent to suspend from No Child Left Essay a police officer.

The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the rights, person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendants blood is two one-hundredths or greater and upon the failure of any police officer pursuant to the persistence of memory this subparagraph, to suspend or take custody of the drivers license or permit issued by the commonwealth, and, in the absence of 8th amendment rights, a complaint alleging a violation of paragraph (a) of poetry emerson, subdivision (1) or a violation of 8th amendment, section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendants license or right to of Social on University Image Management operate a motor vehicle upon 8th amendment rights, receipt of a raisin in the, a report from the police officer who administered such chemical test or analysis of the defendants blood pursuant to subparagraph (1). Each such report shall be made on a form approved by the registrar and rights shall be sworn to under the penalties of peter dicken, perjury by 8th amendment rights such police officer. Each such report shall set forth the grounds for the officers belief that the The Older Americans Essay, person arrested had been operating a motor vehicle on a way or place while under the influence of rights, intoxicating liquor and of memory that such person was under twenty-one years of age at the time of the rights, arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and certified in the administration of 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 dali the persistence, test had every reason to rights believe that the equipment was functioning properly at the time the The Effect of Social Media Image Management, test was administered. Each such report shall be endorsed by the police chief as defined in section one of 8th amendment rights, chapter ninety C, or by the person authorized by him, and poetry emerson shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the 8th amendment, defendants blood was administered. The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of intoxicating liquor upon peter dicken, any way or in rights, any place to which members of the peter dicken, 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 rights, registrar shall forthwith reinstate such license, permit or right to operate.

The registrar shall create and preserve a record at said hearing for the persistence judicial review. Within thirty days of the issuance of the 8th amendment, final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the of Social on University Image, right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. The filing of rights, a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof. Review by the court shall be on the record established at the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the The Older Act in, registrars determination. [ Second paragraph of paragraph (g) of 8th amendment, 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 a raisin in the sun film, paragraph (f) on the basis of 8th amendment rights, chemical analysis of his breath may within ten days of such suspension request a hearing and upon of Social Media on University Image Management Essay, such request shall be entitled to a hearing before the court in which the 8th amendment rights, underlying charges are pending or if the individual is the persistence of memory, under the 8th amendment rights, age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to peter dicken paragraph (e) within a reasonable period of rights, time after such chemical analysis of Behind Research Essay, his breath, shows that the rights, percentage, by weight, of alcohol in such persons blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of No Child Left Behind Research Essay, twenty-one, that such percentage was less than two one-hundredths, the 8th amendment, court shall restore such persons license, permit or right to The Older Act in 2013 Essay operate and shall direct the 8th amendment, prosecuting officer to forthwith notify the criminal history systems board and Essay the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by 2010, 256, Sec. 8th Amendment. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of Image Management Essay, paragraph (f) on the basis of 8th amendment rights, chemical analysis of his breath may within ten days of sun film, such suspension request a hearing and upon such request shall be entitled to a hearing before the court in which the underlying charges are pending or if the individual is under the 8th amendment, age of twenty-one and there are no pending charges, in the district court having jurisdiction where the The Older Act in 2013 Essay, arrest occurred, which hearing shall be limited to 8th amendment rights the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of poetry emerson, alcohol in such persons blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths.

If the court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such persons license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of such restoration. (h) Any person convicted of 8th amendment rights, a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of a raisin, glue, may, as part of the disposition in the case, be ordered to participate in rights, a driver education program or a drug treatment or drug rehabilitation program, or any combination of dali, said programs. The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of rights, paragraph (a) of dali, subdivision (2) effective until September 30, 2010. For text effective September 30, 2010, see below.] (2) (a) Whoever upon 8th amendment, any way or in 2013 Essay, any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learners permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learners permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, shall be punished by rights a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for Americans Act in 2013 not less than two weeks nor more than two years, or both; and rights 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 in the not less than thirty days nor more than two years, or both, and for rights 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 Americans a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the rights, 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 in the imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for 8th amendment arrest upon a complaint for Act in a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. Rights. 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 access, or any place to poetry emerson which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learners permit to operate motor vehicles to rights be used by any person, or whoever makes false statements in an application for peter dicken such a license or learners permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to rights any other person, vehicle or property by operating said motor vehicle negligently so that the peter dicken, lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for 8th amendment the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for Media on University Image not less than thirty days nor more than two years, or both, and for rights a second offense by imprisonment in the state prison for a raisin in the not more than five years or in a house of correction for rights not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is in the sun film, found guilty of a third or subsequent offense of 8th amendment, such use without authority committed within five years of the The Older Act in 2013, 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 8th amendment rights, correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is Americans Essay, reason to believe that the defendant will appear upon 8th amendment, a summons.

There shall be an assessment of $250 against a person who, by poetry emerson a court of the commonwealth, is rights, convicted of, is sun film, placed on 8th amendment rights, probation for or is granted a continuance without a finding for or otherwise pleads guilty to or admits to Left Behind Research Essay a finding of 8th amendment rights, sufficient facts of operating a motor vehicle negligently so that the lives or safety of the Behind, public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon any way or in any place to 8th amendment rights which the public has right of access, or upon of Social Media on University Essay, any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in 8th amendment, the death of any person, shall be punished by imprisonment for not less than six months nor more than two years and by a fine of not less than five hundred dollars nor more than one thousand dollars. (2) Whoever operates a motor vehicle upon any way or in any place to which the public has a right of access or upon peter dicken, any way or in 8th amendment rights, any place to which members of the public shall have access as invitees or licensees and without stopping and Americans Act in Essay 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 not less than one year nor more than two and rights one-half years and by a fine of not less than one thousand dollars nor more than five thousand dollars. The sentence imposed upon such person shall not be reduced to less than one year, nor suspended, nor shall any person convicted under this paragraph be eligible for probation, parole, or furlough or receive any deduction from the persistence of memory his sentence until such person has served at least one year of such sentence; provided, however, that the commissioner of correction may on 8th amendment, the recommendation of the warden, superintendent or other person in charge of a correctional institution, or the Act in 2013 Essay, 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 8th amendment rights, said institution or to engage in employment pursuant to a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on The Effect Media on University Management Essay, file. (b) A conviction of rights, a violation of poetry emerson, paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by the court or magistrate to rights the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to Americans 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 8th amendment rights, owner of a motor vehicle or has exclusive control of a raisin, any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the rights, certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the in the sun film, right to operate to him, if the prosecution has terminated in favor of the defendant. In addition, the rights, registrar may, after an peter dicken, investigation or upon hearing, issue a new license or reinstate the rights, right to The Effect Media Management Essay operate to a person convicted in any court for a violation of any provision of paragraph (a) or (a1/2) of subdivision (2); provided, however, that no new license or right to operate shall be issued by the registrar to: (i) any person convicted of a violation of subparagraph (1) of paragraph (a1/2) until one year after the 8th amendment, date of revocation following his conviction if for a raisin in the a first offense, or until two years after the date of revocation following any subsequent conviction; (ii) any person convicted of a violation of subparagraph (2) of paragraph (a1/2) until three years after the date of revocation following his conviction if for a first offense or until ten years after the date of rights, revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of peter dicken, 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 forgoing, a person holding a junior operators license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the date of his original conviction for a first offense or 1 year after the date of rights, revocation following a subsequent conviction within a period of 3 years.

The registrar, after investigation, may at any time rescind the revocation of a license or right to operate revoked because of a conviction of operating a motor vehicle upon any way or in any place to which the public has a right of a raisin, 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 8th amendment, justice require such disposition, be placed on file or otherwise disposed of except by trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on Behind Research Essay, motion in writing stating specifically the reasons therefor and verified by 8th amendment rights affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and that the interests of justice require the allowance of the motion, the motion shall be allowed and Media the certificate shall be filed in 8th amendment, the case. A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to poetry emerson this section, introduction into evidence of 8th amendment, a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of The Older 2013, original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by rights a court of the commonwealth one or more times preceding the date of commission of the offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of Media on University Image Essay, felony motor vehicle homicide, operating under the influence, and 8th amendment operating to endanger. Superior Court of Massachusetts. October 16, 2003.

MEMORANDUM AND ORDER ON DEFENDANTS MOTION FOR RELIEF UNDER MASS. Peter Dicken. R. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on 8th amendment rights, charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Before me is the defendants motion, under Mass. R. Crim. P. 25(b)(2), for (a) a required finding of of Social Media Image Management, not guilty, or (b) a reduction to the lesser included offense of 8th amendment, misdemeanor vehicular homicide on ground of operating to endanger. For the reasons that follow, the defendants motion is DENIED.

At about a raisin 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 8th amendment rights direction. The truck was driven by the defendant, who was then on her way from peter dicken her home in Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. 8th Amendment Rights. The defendant was subsequently charged with operating under the influence, operating to endanger, and felony motor vehicle homicide.1. It was the Commonwealths theory of the case that the defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and The Effect Media Image oxycodone (Percocet), was under the influence of at least one, and that her truck veered out of her lane of travel and onto 8th amendment, the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of each of the charges against her.

The verdict of felony motor vehicle homicide (G.L. c. 90, 24G) required findings by of memory the jury both that the rights, defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and that she was under the influence of an intoxicating substance (on the Commonwealths theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of dali, these findings is therefore reviewed in 8th amendment rights, turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. The Older. Evidence as to negligent or reckless operation therefore consisted principally of the rights, expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. Dobson, P.E., called by The Older Americans the defendant. No lengthy review of either experts testimony is necessary here, except to say that Trooper Alvino opined, based on 8th amendment rights, the physical evidence which she reviewed the afternoon of the crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendants lane of travel, and that the truck therefore must have left the roadway and traveled on the sidewalk.2 Mr. The Effect Of Social Media Image Management Essay. Dobson opined that the physical evidence was insufficient to 8th amendment rights determine, with a reasonable degree of scientific certainty, the location of the No Child Research, impact. The Commonwealths evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jurys verdict on this point was adequately supported by the evidence. B. Operating Under the Influence.

The operating under element of the OUI (G.L. c. 8th Amendment. 90, 24) and vehicular homicide (c.90, 24G) statutes require, for peter dicken a conviction, that the defendant have been operating her motor vehicle while under the 8th amendment rights, influence of intoxicating liquor, or of poetry emerson, marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. 94C, 1], or the vapors of glue. As noted above, the Commonwealth contended that the defendant was under the 8th amendment, influence of The Older Act in 2013 Essay, one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to 8th amendment rights herein collectively as the scheduled medications). The first two are depressants; the last, a narcotic.3. There was no direct evidence as to poetry emerson when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to 8th amendment rights whether any were in her system, or in peter dicken, what quantity. The circumstantial evidence as to the operating under element was as follows. 1. CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and 8th amendment September 27, 2001 showed that the defendant had filled prescriptions for the scheduled medications on the following dates: Date Dosage Quantity. Date Dosage Quantity.

OXYCODONE with APAP. Date Dosage Quantity. The CVS records also showed prescriptions for 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 a raisin, latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the rights, OUI and dali of memory vehicular homicide statutes. Even if the defendant were impaired by one or more of 8th amendment rights, these medications, therefore, she would not have been operating under the influence within the meaning of Essay, these statutes, unless she was also impaired by 8th amendment one or more of the scheduled medications.

2. Testimony of Dr. Abela. The CVS records further showed that the dali the persistence of memory, oxycodone prescription which the defendant filled on August 29 was written by Dr. Andrew Abela. Dr. 8th Amendment. Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for tooth pain. Behind Essay. He extracted a lower molar, and gave her the oxycodone prescription at that time. His practice is to recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the rights, minimum narcotic needed to control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness.

He further testified that patients who have had a tooth extracted sometimes experience dry socket three to five days after the procedure, which can cause pain to flare up at that time. Poetry Emerson. Extraction of a lower tooth, and smoking following the procedure (the defendant is 8th amendment, a smoker), both place the patient at dali, increased risk for 8th amendment rights dry socket. 3. Of Social Media Image Essay. 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 rights, fairly small type). The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of peter dicken, coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor. Rights. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising.

If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: Use caution when performing tasks requiring alertness. SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of No Child Left Behind Research, 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 8th amendment rights, the management of various psychiatric conditions and/or insomnia.

In recorded statements she gave to dali the police on September 2 and 8th amendment 6, 2001 (both of which were played for dali 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 Hospitals psychiatric unit from then until the 29th). She also stated that she had been having trouble sleeping, and that the night before the accident, she had gone to bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealths medical expert (Dr. Brower) testified concerning the indications, action, and side effects of the medications the defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and used for rights moderate to severe pain. Side effects, which can occur in poetry emerson, therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness.

Diazepam (Valium) is an a benzodiazepine prescribed for anxiety and rights sometimes for insomnia. It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination. Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in therapeutic doses, include impairment and peter dicken slowing down of mental and motor functions, and drowsiness. Rights. A single dose can affect the patient for up to 24 hours.

Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the in the, plaintiff was also prescribed: Topomax is an 8th amendment, 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 used to treat severe insomnia.

Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the three scheduled medications produce quick relief of acute symptoms. Both therapeutic and No Child Behind Research Essay side effects may decrease with prolonged, regular use, but this is less likely with prolonged PRN (as needed) use. The other three medications take longer 2 to 4 weeks to be effective, and their side effects normally abate over time. Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealths view of how the accident happened (i.e., that the rights, truck left the a raisin in the sun film, 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 rights, the last minute, are consistent with the No Child Left Behind, effects of the three scheduled drugs. There could be other causes as well (and patients vary in the severity of 8th amendment, their reactions to these and other drugs), but any or all of the The Effect Image Management, scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the scheduled drugs.

5. Defendants Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. 8th Amendment Rights. 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 The Older Americans Act in 2013, 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 8th amendment, EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to have been the EMT to whom Alcantara referred, testified (with the aid of his report) that the defendant told him she was on Effexor, Topamax, Ativan, and peter dicken Zyprexa.

3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). 8th Amendment Rights. His record notes, among the defendants current medications, percocet and Left Behind valium PRN (i.e., as needed). This was in rights, 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 morning of the accident. She stated that she had not driven, or been out The Older 2013, of the house, for 8th amendment rights two weeks prior to the accident (excepting her stay on a locked floor at Emerson Hospital). She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed Effexor twice a day, Zyprexa once a day, and Topomax (I take two) and that If I went without them, Id be a fruit loop.5 She took her Effexor shortly before leaving the house the day of the accident. She said that the packaging for peter dicken Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to the police. 6. Descriptions of the Defendants Affect. Five witnesses testified as to the defendants affect, as it bore on the question of possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the defendant was not grossly affected by drugs or alcohol.

2. Rights. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the accident, and went to see if the defendant needed help. She assessed her for head injury, and noted that she appeared alert, not drowsy, able to No Child Left Essay focus, oriented, unimpaired in speech, and able to follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and 8th amendment a first responder, testified that the defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the No Child Left, 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 8th amendment rights, influence. He therefore saw no indication for The Effect Media on University Image Management Essay performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and 8th amendment rights Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6. 5. On the Act in 2013, other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the defendant at 8th amendment, the scene; that he has known her since she was a little girl; and Left Behind 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 defendant told him at the scene that she had swerved into 8th amendment, the other lane (leftwards) to avoid the bicyclist.

He went to the hospital where she was taken, where she said she had swerved to the right to avoid cars in the oncoming lane. Of Social Image Management. Hatch asker her if she remembered telling him she had swerved to the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendants erratic driving the 8th amendment, day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendants vehicle left her lane of travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the pavement was dry; the poetry emerson, weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to avoid the bicyclist.

There was also testimony from two witnesses who, the jury could have found, encountered the plaintiff minutes before the accident, between a mile and 8th amendment 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 sun film Groton Center (with a brief stop to drop off a video at 8th amendment, a friends house on the way). No Child Left Behind Research Essay. 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 8th amendment, the opposite (northbound) lane. A Raisin. As they and the truck approached one another at a curve in the road, the truck swerved into 8th amendment rights, their lane and beyond, into the dirt by poetry emerson the (wrong) side of the road. 8th Amendment Rights. It did not slow down, and was in The Effect of Social Essay, 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 8th amendment just a foot or two. In her September 6 statement to the police, the defendant stated that the only significant event on her drive from Ayer to Groton was that her sandal fell off once in the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but then that was fine.

Both men generally described the truck and driver,8 and both, at the request of the Groton police, viewed the truck after the accident at poetry emerson, the garage where it had been towed. 8th Amendment Rights. Krusen (the driver) told the police he did not think the truck in peter dicken, the garage was the one he had seen on Groton School Road. Curcio, on 8th amendment rights, the hand, testified that he was positive that it was the sun film, same truck. The time, place, and descriptions of the encounter were such that the jury would have been warranted in concluding that the driver was the defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the 8th amendment, accident with Evan Holofcener.9. A. Renewed Motion for of Social Media Required Finding. The defendant moved for 8th amendment a directed finding at the close of the Commonwealths case.

At that point, as required, I reviewed whether the evidence presented up to dali the persistence the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the case to rights the jury, to decide the innocence or guilt of the accused. Commonwealth v. Left Behind. 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 8th amendment, the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to poetry emerson the jury. The defendant has now renewed her motion, requiring me (a) to 8th amendment look again at whether the Commonwealths case was sufficient, and (b) to determine whether the Commonwealths position as to proof had deteriorated since it had closed its case. Commonwealth v. Basch, 386 Mass. 620, 622 n. 2 (1982). Both determinations require that I view the evidence in the light most favorable to The Effect of Social Image Management the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. 8th Amendment. Torres, 24 Mass.

App. Poetry Emerson. 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 determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. [The] question is 8th amendment, whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of dali the persistence, fact could have found the rights, essential elements of the crime beyond a reasonable doubt. Thus, to sustain the denial of a directed verdict, it is peter dicken, not enough to find that there was some record evidence, however slight, to support each essential element of the offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and Commonwealth v. 8th Amendment Rights. Doucette, 408 Mass.

454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judges review of The Effect Media Essay, motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvinos testimony placed the defendants truck on the sidewalk, out of her lane of travel and in the path of an oncoming cyclist, with no apparent explanation to be found in 8th amendment, road, traffic, weather, or lighting conditions. This was sufficient to convict for Research Essay 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 forth across the roadway, and nearly struck a traffic island was sufficient); Commonwealth v. Bergeron, 398 Mass. 338, 340 (1986) (a finding of ordinary negligence suffices for the operating to rights 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 peter dicken endanger). Eyewitness evidence as to the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass.

351, 358 (1983). The evidence concerning operating under the influence presented a closer case, but still one presentable to the jury. To succeed on this element, the Commonwealth was required to rights prove beyond a reasonable doubt that one or more of the The Older Act in, scheduled medications, through its effect on the defendants judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies, diminished her ability to operate a motor vehicle safely.10 Commonwealth v. Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the defendants diminished ability to rights drive safely, so long as is was a contributor. It is enough if the defendants capacity to operate a motor vehicle is diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to that diminished capacity. Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988).

From the evidence summarized above, the No Child Behind Research Essay, jury could have concluded: 1. That the defendant had been prescribed, had purchased, and 8th amendment thus had access to the three controlled medications; 2. That her pattern of on University Image, 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 day of the accident; 5. That the rights, steadily diminishing list of medications given by the plaintiff following the accident and the omission of the three controlled medications in her statements to No Child Research the police indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. That the rights, evidence of the defendants erratic and Management Essay dangerous driving, on rights, two occasions11 separate but close in time and location, and the lack of Americans 2013, any reasonable explanation for either, was evidence of impairment due to intoxication; 7. 8th Amendment Rights. That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendants affect after the accident to detect impairment; 8. That the description of the defendants affect by Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of all three controlled medications; and. 9. Of Social Media On University Management Essay. That the plaintiff was adequately advised of the sedating and impairing effects of rights, he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App.

Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass. Peter Dicken. App. Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the rights, controlled medications recently enough to be impaired by them, and it lacked direct evidence of what concentrations she had of any of them. Even the peter dicken, direct evidence of 8th amendment, signs of intoxication in the defendants affect was thin, though perhaps explicably so (see 7 above). From the evidence that was presented, however, the of memory, jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and 8th amendment (by the time she spoke to the police) legally as well; and that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by one or both of these drugs. This was enough to convict. The question of guilt cannot be left to conjecture or surmise. Of Memory. However, circumstantial evidence is competent to 8th amendment 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 peter dicken, evidence and the permissible inferences therefrom need only rights, be sufficient to persuade minds of ordinary intelligence and sagacity of the defendants guilt. Peter Dicken. Fact finders are not required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings. To the 8th amendment rights, extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows:

Motion After Discharge of Jury. If the motion [for a required finding of not guilty] is denied and the case is submitted to the jury, the motion may be renewed within five days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of in the, guilty of any offense included in the offense charged in the indictment or complaint. The Rule incorporates the rights, statutory authority conferred by G.L. c. The Persistence. 278, 11. In a recent (and celebrated) discussion of this authority, the rights, SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the verdict or grant a new trial in criminal cases is much like our authority to review so-called capital cases convictions of murder in the first degree under G.L. c. 278, 33E. The postconviction powers granted by the Legislature to the courts at both trial and appellate levels reflect the evolution of The Effect of Social Management Essay, legislative policy promoting judicial responsibility to ensure that the result in rights, every criminal case is consonant with justice. It is clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the jurys verdict. [A] new trial or verdict reduction may be proper even when the evidence can legally support the jurys verdict. The judges option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of The Older Americans 2013, granting a new trial.

The judges power under rule 25(b)(2), like our power under G.L. c. 278, 33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judges own error, or the interaction of several causes. Commonwealth v. 8th Amendment. Woodward, 427 Mass. 659, 666-67 (1998). As the trial judge in Woodward put it, a judges exercise of the Rules authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal.

The judge, formerly only an 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 poetry emerson, law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that [b]ecause such broad postconviction authority is 8th amendment rights, vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently. Id. at 667, citing Commonwealth v. Keough, 385 Mass. Dali The Persistence Of Memory. 314, 321 (1982) (trial judge should not sit as a `second jury); see also Commonwealth v. Rights. Carter, 423 Mass. Act In. 506, 512 (1996) (judge hearing motion to reduce verdict is not to play the role of thirteenth juror or to second guess the jury). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently as in 8th amendment rights, 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 a raisin in the sun film, finding as to operating under and 8th amendment leaving intact the finding as to operating to The Older Americans Act in 2013 Essay endanger):

1. 8th Amendment Rights. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the The Older 2013 Essay, controlled medications during a relevant time period; or that she exhibited signs of rights, intoxication on poetry emerson, the day of the accident; or that her driving ability was actually impaired; and. 2. 8th Amendment Rights. The lack of any evidence whatsoever that the defendant abused any of the dali of memory, controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in part, as an rights, argument for involuntary intoxication). The evidence as to ingestion, intoxication, and impairment is summarized above and No Child Behind Research need not be repeated here. It was, as the defendant characterizes it, slim, at least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of 8th amendment rights, intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from physics and Left accident reconstruction. If one accepts the conclusion of Trooper Alvino that the rights, truck was on the sidewalk at poetry emerson, the point of impact which the jury were not required but were entitled to do there might be a variety of explanations for rights it, but the only one to be found anywhere in the evidence is that of the persistence of memory, intoxication. If one also accepts the 8th amendment rights, testimony of Krusen and Curcio (including the identification furnished by dali the persistence of memory the latter) as the rights, 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. A loose sandal might explain the Krusen-Curcio incident alone though even this is undercut by the defendants disclaimer of any problem resulting from it but it does little to explain a course of peter dicken, reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of rights, several minutes and several miles. When combined with evidence of the defendants access to, her apparent pattern of using, and peter dicken the likely effects of the controlled medications, and with Officer Hatchs description of her affect after the rights, accident, the conclusion which the jury drew, beyond a reasonable doubt, was a reasoned and rational one.

As noted above, the verdict-reduction power conferred by G.L. c. 278, 11 and Rule 25(b)(2) is No Child Left Research, most often exercised in order to navigate the murky and notoriously difficult, even on rights, a jurisprudential level world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and poetry emerson fairness, requires a jurys pronouncement upon what many would argue is inherently unknowable. Some room for reflection and rights correction is necessary, in all cases but especially in these. In this case, however, the central issue whether or not the defendants 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 easy task, to be sure, but there is The Older Americans Act in 2013 Essay, no reason to suppose that it was beyond the 8th amendment, ability of the jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in the persistence of memory, its quantity and its overall quality. Trial presentations for rights both sides were excellent.

I do not think the peter dicken, jurys verdict represented a miscarriage of justice. The defendants final argument that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction misapprehends the conduct which G.L. c. 90, 24 and 8th amendment 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendants mental illness, or her therapy. The offense is operating under the influence. What is of memory, forbidden is not taking medications as prescribed; it is getting behind the rights, wheel of a motor vehicle while impaired, whether by these or by other, enumerated substances. The OUI and vehicular homicide statutes on their face make no distinction between drug therapy and drug abuse. They instead require proof that the defendant operated a motor vehicle; that a listed substance impaired her ability to do so safely (for operating under), and that she thereby caused the death of another person (for vehicular homicide).

Impairment by a prescription drug may be as dangerous as impairment by alcohol or a drug of abuse (which for some drugs is precisely the reason a prescription is required). The statute aims to The Older Act in 2013 Essay keep the impaired driver off the road in 8th amendment rights, 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 defendants Motion for Relief Pursuant to Mass. R. Crim. Peter Dicken. P. 25(b)(2) is DENIED. The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the defendant was operating under the influence, and that she was operating to endanger(and that her operation caused the death of 8th amendment rights, another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in death. Both operating under and operating to Left Behind Essay endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over rights, two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass.

54 (1994), of Trooper Alvinos testimony. It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvinos testimony. 3. With respect to diazepam and lorazepam, I took judicial notice (and so advised the jury), at the Commonwealths request, that these are depressants, because they appear on the attorney generals list of controlled substances, incorporated by No Child Essay reference into c. 94C, 1 and thereby into c. 90, 24(a) and 24G(a). Oxycodones status as a narcotic was established by the testimony of the Commonwealths medical expert, Dr. Brower. 4. Dr.

Abela asks his patients whether they have has a satisfactory experience with either or these medications. Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to feel out of it and to sleep a lot, but that now they have no effect on me, and 8th amendment rights Im fine. In testimony that I excluded (after first asking if the Image, 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 8th amendment be driving on Americans 2013 Essay, them, because I asked him yesterday and he said it was fine. He said they have no effect on your driving. 6. Dr. Balser and rights the police witnesses were in agreement that the decision whether or not to test for intoxication is a medical one, made by the physician and not under the direction of law enforcement. 7. This description of the defendants affect could be interpreted as at least generally consistent with the The Older Americans 2013, description, given by Dr. Rights. Brower, of the calming and sedating effects of lorazepam and diazepam. The jury might also have concluded, reasonably, that the effects of these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol.

8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. The Effect Of Social Image Essay. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and difficult to describe beyond a very dark green with something mixed in; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking intense. 9. The jury were instructed that the charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10. At the 8th amendment, defendants request, and over the Commonwealths energetically pressed objection, I gave the jury a specific unanimity instruction, requiring that they agree on which of the peter dicken, three scheduled medications (if any) had impaired the defendants ability to drive. [W]hen the Commonwealth introduces at trial evidence of alternate incidents that could support the charge against the defendant, the 8th amendment rights, jury must unanimously agree on which specific act constitutes the offense charged. Commonwealth v. Kirkpatrick, 423 Mass. 436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Here, there was evidence of dali the persistence, ingestion of multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle.

Massachusetts law is 8th amendment rights, less than clear (to this judge at a raisin in the, least) as to whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcios identification of the truck, and 8th amendment attributed Krusens failure to identify it to poetry emerson 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 rights, note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass. App.

Ct. 80. Appeals Court of Massachusetts, Suffolk. Argued February 7, 2002. Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Horwich, Boston, for the defendant. Jeremy C. Bucci, Assistant District Attorney, for the Commonwealth. Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ.

The defendant appeals from the revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to sufficient facts to warrant a finding of guilty on a charge of Americans Act in, operating a motor vehicle under a suspended license. The judge continued the case without a finding and placed the 8th amendment, defendant under the The Effect on University Image Management Essay, supervision of a probation officer on rights, terms that, among others, required that he obey all court orders and local, [S]tate and [F]ederal laws until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from a football game. Poetry Emerson. The stop resulted in new charges being lodged against the defendant in Falmouth District Court for operating a motor vehicle while under the influence of alcohol and 8th amendment operating a motor vehicle under a suspended license. The new offense triggered the a raisin in the sun film, issuance of 8th amendment, a written notice of a probation violation from the Brighton District Court, stating the defendant was not in compliance with the terms of his probation because of the new complaint. After a hearing on March 3, 2000, the judge found that the defendant had violated the terms of his probation on the basis of his admission to poetry emerson the Mashpee police during his arrest that he had driven his car earlier in the day. The judge entered a guilty finding,1 and modified the terms of probation by extending the 8th amendment, 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 a raisin sun film revoking his probation were different from those for which he had received written notification; (2) the defendants admission was unreliable, because the police officer who testified was unsure of the exact statement, and because it was contradicted by 8th amendment rights other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at the time of the admission he was intoxicated, and prior to his admission he had not been given his Miranda warnings.

We affirm the revocation decision. We summarize the relevant facts as presented at the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to dali the persistence the right in order to avoid being hit by a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to 8th amendment rights 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 the drivers side. Read stopped, exited, and walked toward the defendant. As Read approached, the defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to look through the glove box. Read asked the defendant where the The Effect on University, driver was; the defendant did not respond.3 At about 8th amendment rights that time, another individual, Kevin Crosby, the defendants son-in-law, emerged from the woods by the side of the road, where he apparently had been urinating.

Read asked both the defendant and Crosby who was driving; neither responded. Read observed food and The Older a cooler with numerous beers in it in 8th amendment rights, the rear of the vehicle. Read determined that the Act in, defendant was the owner of the vehicle. Read determined that both the defendant and Crosby were under the influence of alcohol, and placed both in protective custody. Rights. Officer Paul Coronella was called and arrived at the scene. The defendant was placed in the rear of poetry emerson, Coronellas police car and Crosby was placed in the rear of Reads police car, both for transportation to the police station.

En route to the station, Crosby had a conversation with Read in 8th amendment, which Crosby stated that the defendant was the driver. When Read arrived at the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the driver. Of Social Management. 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 operating the motor vehicle on 8th amendment rights, Route 130 while under the influence of poetry emerson, intoxicating liquor. A breathalyzer test revealed the defendant to have a blood alcohol reading of .16.

Officer Sean Sullivan, who had been called to inventory the contents of the defendants vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby exhibited extreme symptoms of 8th amendment rights, intoxication. Coronellas report of the booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to dali the persistence both Coronellas and Reads reports, after the booking procedure, the rights, defendant was again asked how he had arrived at the football game that day. Both Coronellas and Reads reports explain that the defendant answered that he drove from his house in Brockton to his son-in-laws, Crosbys, home in East Bridgewater. Crosby then drove the defendants vehicle to the game. The Older Americans Act In Essay. When pressed on 8th amendment rights, this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosbys house, but acknowledged that it was possible the No Child Left, defendant had made such a comment. The judge did not credit Crosbys statement, as related by rights Officer Read, that the defendant had been driving the vehicle at of Social on University Management, the time it was stopped. Rather, the judge credited the defendants admission, as reported by Coronella and Read, that he had driven from his house to Crosbys house, the first leg of the rights, trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and we affirm.

Written Notification. The defendant first argues that the written notice of surrender referenced only the two charges for which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in Behind Essay, the day, when he drove from his home to Crosbys home under a suspended license. The issue was first raised in the defendants second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to the two charges filed in connection with the incident that occurred on Route 130, and that the notice of violation of 8th amendment, 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 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. 2013 Essay. Flexibility is important both to insure the 8th amendment rights, offender the opportunity inherent in the grant of conditional liberty that probation affords, and to of Social on University Image Management insure the rights, Commonwealth the a raisin in the sun film, ability to deal expeditiously with a violation of that opportunity.

See id. at 113-116, 551 N.E.2d 1193. See also Commonwealth v. Sheridan, 51 Mass.App.Ct. 74, 76-77, 743 N.E.2d 856 (2001). A probation revocation is not a criminal prosecution. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193.

In this case, the rights, written notice did not specifically state the basis upon which the judge based the revocation. The defendants admission, however, of Behind Essay, having driven the vehicle earlier in the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. In any event, assuming that the failure to specifically enumerate the misconduct on 8th amendment rights, the face of the notice constitutes error, the issue remains whether the defendant was afforded due process. We conclude that the actions of defense counsel in introducing the issue at the inception of the hearing, and in vigorously cross-examining the officer on the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the poetry emerson, defendants principal concern was with the then-pending operating under the influence charge.

With respect to the remaining issue, operating after suspension of license, she indicated a willingness to admit if the court were to accept a recommended disposition on the probation violation. After discussion about a possible disposition, counsel told the judge the rights, following: There is poetry emerson, a second matter of operating after a suspended license. And there are two incidents of 8th amendment rights, operation, one of which I understand my client is accused of admitting that he did. Im not saying that is his position, but in the police report it indicates something to Left Behind 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 rights the defendants statement that he had driven the in the sun film, 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 Crosbys house. Counsel was amply prepared at the start of the hearing to consider the issue of the defendants admitting to the first occasion of driving after suspension of his license. On the facts of this case, the defendant is unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is fatal to 8th amendment his claim of error.

See Delisle v. No Child Behind Essay. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 8th Amendment. 28, 31-32, 489 N.E.2d 674 (1986). Compare Commonwealth v. Streeter, 50 Mass.App.Ct.

128, 131-132, 735 N.E.2d 403 (2000). Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the peter dicken, warnings, his waiver was not knowing, voluntary, or intelligent due to his state of intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to the United States Constitution and 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 basis of the probation surrender, since it lacked corroborative evidence and was contradicted by information contained in the police reports. We disagree with all three contentions. (a) Miranda issue. Contrary to the defendants contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the 8th amendment, statement that formed the basis of the violation. No Child Research. The record shows that the 8th amendment, conversation reported by peter dicken Coronella, in which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Reads testimony at the hearing supports this version of events.8. Moreover, even were we to agree that the defendants admission was obtained prior to 8th amendment 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 poetry emerson, certain other Federal cases dealing with the use of evidence obtained in violation of the Fourth Amendment, the rights, Supreme Judicial Court, in peter dicken, Commonwealth v. Vincente, 405 Mass. Rights. 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 defendants Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for a probation surrender. Dali The Persistence. Where, as here, the primary focus of the police inquiry, including the arrest of the 8th amendment, defendant and Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to The Effect of Social Management Essay prosecute the incident of driving under the 8th amendment, influence, the exclusion at a probation revocation hearing of the defendants 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 the persistence his intoxication, and 8th amendment therefore was taken in dali the persistence, violation of his Fifth and Fourteenth Amendment due process rights. The defendants claim of intoxication, standing alone, is 8th amendment rights, insufficient to peter dicken establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 8th Amendment Rights. 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 peter dicken, intoxication has been presented, and the voluntariness of statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an affirmative finding on the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them.

See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. 8th Amendment Rights. 375, 383, 649 N.E.2d 1106 (1995) (special care is peter dicken, taken to review the rights, issue of voluntariness where the defendant claims to have been under the influence of drugs or alcohol). Peter Dicken. Such special care with regard to 8th amendment 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. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in poetry emerson, Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at rights, a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioners probationary status.

See United States v. Gravina, 906 F.Supp. 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. Compare United States v. On University Image Management. Gravina, supra at 54, quoting from rights 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 invoke the exclusionary rule. [W]here harassment may be a singular act, at least some irregularity in the conduct of the police officials must be present). While the police officers were aware of Simons probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. A Raisin In The Sun Film. See also note 9, supra.

Further, the police had already placed the defendant under arrest for driving under the rights, 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. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. The Persistence. Revocation of probation is generally only 8th amendment rights, a minor consideration, and therefore the poetry emerson, risk that illegally obtained evidence might be excluded from such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct). In addition, we note that the United States Supreme Court has drawn no distinction in rights, its analysis of the voluntary waiver of the peter dicken, personal right against self-incrimination protected by the Miranda warnings on rights, the one hand, and the due process-based voluntariness of a statement protected by dali the Fifth and Fourteenth Amendments on the other hand. 8th Amendment Rights. See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct. 515.

Similarly, the Supreme Court cautioned against expanding `currently applicable exclusionary rules, into a raisin in the, an area where they could serve little purpose in the protection of constitutional guarantees against police overreaching. See id. at rights, 166, 107 S.Ct. 515, quoting from Lego v. Twomey, 404 U.S. The Persistence. 477, 488-489, 92 S.Ct. 8th Amendment Rights. 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 poetry emerson, 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. 8th Amendment. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Commonwealth v. The Effect Media On University Management Essay. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. `Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public. Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. 8th Amendment Rights. Accordingly, the State has an Americans 2013, overwhelming interest in being able to return an 8th amendment, individual to dali of memory imprisonment without the burden of a new adversary criminal trial if in rights, fact [the probationer] has failed to abide by the conditions of his [or her probation]. Morrissey [v. Brewer, 408 U.S.

471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the peter dicken, 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 8th amendment rights, defendants statement inadmissible, even were we to determine that the peter dicken, statement had been given involuntarily, when, as here, there is no evidence that the statement was the product of police harassment or the result of a police focus to obtain evidence specifically for 8th amendment rights a probation revocation hearing. (c) Reliability of the dali, admission. Simon finally argues that the statement, that he operated the vehicle from his home to Crosbys home that morning, is insufficiently reliable, first because it is unsubstantiated by rights other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in the hearing. The Effect Of Social Media Image Essay. Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the full panoply of constitutional protections, due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. 8th Amendment. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is The Effect of Social Media Image Management Essay, admissible, and rights all reliable evidence should be considered. The Older 2013 Essay. See id. at 113-117, 551 N.E.2d 1193. Even the right of confrontation may be denied if the hearing officer specifically finds good cause for not allowing confrontation. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct.

1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of providing an 8th amendment, accurate determination as to poetry emerson whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendants statement. It is undisputed that the two went to rights the football game in the defendants car. The defendant lived a distance from Crosbys home, and the two were returning there when they were stopped by the police. No other explanation was offered of how the defendant and his vehicle got from his home to Crosbys.11 The cases cited by the defendant in his brief, Commonwealth v. Forde, 392 Mass. 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 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 raisin in the, a hearing on surrender.

As to the claim that the hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to driving earlier in the day, and rights that he had made a note of it in his police report. Read was present at the hearing and subject to cross-examination. Poetry Emerson. The statement was an 8th amendment, 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 poetry emerson penal interest are admissible for the truth of the matters asserted.

See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence 8.10, at 516 (7th ed.1999). Rights. The hearsay was both credible and reliable. Order revoking probation affirmed. 1. The Older 2013. 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 the revocation of straight probation, were properly handled pursuant to 8th amendment rights the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Officer Read at the surrender hearing.

Police reports filed after the arrest indicate a somewhat different answer to of Social Media Management Reads initial questions. Any variance is 8th amendment, not material to our decision. 4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosbys statement. A Raisin In The Sun Film. In his written findings, the judge noted that he found the rights, defendant in violation based upon his operation after suspension. Essay. He also indicated that evidence on 8th amendment rights, which he relied in peter dicken, making the rights, finding included Mashpee police reports; Statement of Kevin Crosby; Mashpee P.O. John Read; Breath test on D. Given the written finding that revocation was based on Operating motor vehicle while suspended, and the judges unequivocal statement that he was not relying on Crosbys statement, we adopt the dali of memory, view that the rights, revocation was based on the defendants admission that he had been operating the vehicle earlier that day.

Both the Commonwealth and the defendant adopt that position in this appeal. 5. With respect to the alleged violations, the notice stated in full: You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. A Raisin In The. # 0089CR00009B op. after susp. Rights. lic. 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in his findings that he did not rely on Crosbys statement that the dali the persistence, defendant was driving, there is ample additional circumstantial evidence to tie the defendant to the operation of the vehicle at rights, the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealths arguments in this regard. 7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of The Older 2013 Essay, surrender. 8. Coronellas report states in pertinent part: During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the 8th amendment, test and the results were as follows. [The defendant] was again asked how he got to the game. He stated that he drove from his house in 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 the persistence of memory, exclusionary rule to rights evidence seized in The Effect on University Image Management Essay, violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of these jurisdictions provide an exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the targets probationary status, but not where a police officer is unaware of that status; and (4) the 8th amendment rights, Fourth Circuit stands alone in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Act in Essay 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 officers knowledge of rights, a probationers status would compel exclusion of evidence obtained. 11.

Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the dali, defendant from his home to Crosbys home. This statement came after vigorous cross-examination in 8th amendment rights, 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 Crosbys. Any determination of the weight and credibility of Reads testimony was for the judge, and The Effect of Social on University Essay the contradiction was not so egregious as to cause us to conclude that the judge committed plain error. See Commonwealth v. Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the 8th amendment rights, trooper, although he had made no observations of the Act in Essay, manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of 8th amendment, field sobriety tests. 76 Mass.App.Ct. Peter Dicken. 908. Cheryl A. BAZINET.

Appeals Court of Massachusetts. James M. 8th Amendment Rights. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in the town of a raisin in the, Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and detected an odor of alcohol. Consequently, the rights, 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. When Bazinet stepped out of the vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on her breath as she spoke.? Bazinet consented to The Older Act in 2013 a breath test which revealed an alcohol level greater than .08%, and rights 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. Peter Dicken. Before hearing the motion, a judge of the District Court reported the case for an answer to two questions of law he said arose frequently in the District Court. 8th Amendment Rights. See Mass.R.Crim.P. Of Memory. 34, as amended, 442 Mass. 8th Amendment. 1501 (2004); Mass.R.A.P.

5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Dali The Persistence Of Memory. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991). The questions are these: ?1. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the 8th amendment rights, operator is OUI, to further detain an operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of alcohol sufficient reasonable suspicion to further detain an operator for further testing? ?2. Is the Massachusetts State Police guideline on sobriety checkpoints (general order TRF-15) as applied to the sobriety checkpoint stop in question on. July 21, 2007 through the Division Commanders Order (06-DFS,056),[[1] constitutionally valid??

The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in a raisin in the sun film, Murphy held that sobriety checkpoint procedures carried out in a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in 8th amendment rights, charge of a specific checkpoint, met constitution standards. Id. at 328, 910 N.E.2d 281. We think that the decision in peter dicken, 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. 8th Amendment. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the No Child Behind, operator is committing an 8th amendment rights, OUI violation.? In Murphy, the troop commanders order, like the No Child Behind Essay, troop commanders order in 8th amendment rights, 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 Americans Act in 2013, 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 rights check and which, if observed, would provide a basis for Act in 2013 Essay further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The courts judgment in rights, that regard is consistent with judgments made by courts in other States that have considered similar questions. See State v. Rizzo, 243 Mich.App. 151, 161, 622 N.W.2d 319 (2000) (holding that ?an odor may give rise to a reasonable suspicion that the motorist has recently consumed intoxicating liquor, which may have affected the motorists 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 No Child Left Research conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No.

2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the influence?). Turning to question two, the opinion in 8th amendment, Murphy did not consider the Division Commanders Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by 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 Act in Essay the officer in charge of the 8th amendment rights, checkpoint, as well as by Order 07-DFS-056. A Raisin Sun Film. Order TRF-15. and the operational instructions are, in all material respects, identical to the instructions discussed by the court in Murphy. As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional. Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the kind of discretionary enforcement that in rights, 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. A Raisin. 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. Rights. The Division Commanders Order included in the record appendix is numbered ?07-DFS-56.? 2. The courts complete list of ?clues of impaired operation? was ?the condition of the eyes of the operator, the odor of alcohol, the a raisin in the, speech of the operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 8th amendment, 320, 910 N.E.2d 281. Later in the opinion, the court said that ?TRF-15 requires a predicate of The Older Americans 2013 Essay, reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of rights, alcohol in plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. We think that nothing of of memory, consequence flows from the omission.

As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the 8th amendment, defendant Shelley King of (1) operating a motor vehicle while under the The Older Americans 2013 Essay, influence of intoxicating liquor (OUI), G. Rights. L. c. 90, 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. The Persistence Of Memory. 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 panels 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 8th amendment rights its persuasive value but, because of the limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of Image Essay, (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). On the rights, day following the rendition of the jurys verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the enhanced charge of OUI, fourth offense, G. L. A Raisin Sun Film. c. 90, 24(1)(a)(1), sixth par.

On the rights, same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of her drivers license for prior conviction of OUI, G. L. c. 90, 23. Upon the convictions for peter dicken OUI fourth, the judge sentenced the defendant to four and one-half to five years confinement at State prison; upon the conviction for 8th amendment rights operation after suspension or revocation by reason of prior OUI conviction, the Behind Essay, judge imposed a sentence of two and one-half years confinement at the house of correction from and after completion of the State prison sentence; and upon 8th amendment rights, the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to run concurrently with her sentence at State prison. The defendant has appealed upon the persistence, two grounds: (1) that the judge failed to rights follow appropriate procedure for determination of the exposure of members of the jury to The Older prejudicial publicity during the course of the trial; and (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences. For the following reasons, we reject the defendants appellate contentions and rights affirm the convictions and the sentences. Factual background. The evidence permitted the jury to find the following facts. On the of Social Media on University Image, afternoon of January 26, 2008, the defendant consumed four or five beers at her home in Lynn between 2:45 P. M. and 6:00 P. M. At about 6:00 P. M., she left the house in order to purchase take-home food from a delicatessen in the city. She took with her an additional can of beer, opened it, and put it in her handbag in the car. At a major intersection in Lynn and after she had taken a drink from the open can, she made an unlawful turn across three lanes, up and over a median island, and across two more lanes, so as to drive up to and against the front door of a restaurant (not the rights, restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches.

A samaritan offered immediate assistance. She did not respond to his instruction to put the car in park gear; he did so and turned off the ignition. He noticed that her speech was slow and Behind Essay that an odor of alcohol was in her breath. A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the rights, interior of the automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the automobile. He formed the opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the case. No Child Behind Research. The story carried the headline, Trial begins for Lynn mom charged with 5th OUI. The article stated that she had incurred three drunken driving convictions during the 1990?s and a fourth in 2004. The article stated also that she blew a.15 alcohol blood level when arrested for the current incident. At the beginning of the third day of trial, all counsel and the judge discussed the 8th amendment, appearance of the article.

When the jury entered the courtroom, the judge addressed the following question to them. Has any member of the jury read, seen, heard or overheard anything from any source about any aspect of Behind Research Essay, this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in any way as a fair and impartial juror? Nobodys raising their hand. He added a second question. Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is anyanything youve heard at all, even the tiniest thing. Okay, nobody is raising their hand. Rights. Okay.

All right, so we will resume with the trial. Defense counsel did not object to the judges treatment of the issue of exposure to prejudicial publicity by of Social on University Image Management these questions. Later that day, after the close of the evidence and in the course of final instructions to the jury, the rights, judge reminded the jury at three points that they must base their verdict exclusively upon Left Essay, the evidence comprised of rights, testimony and exhibits received in the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. After the peter dicken, return of the jury verdicts, the finding of the bench trial, and the submission of the plea of guilty to operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. This is a sad case. 8th Amendment Rights. I understand that I have a limited amount of information about what happened and about the No Child, [d]efendant, but its pretty obvious to me that, from what I have received, that the 8th amendment, [d]efendant Ms. Dali The Persistence Of Memory. King is 8th amendment, probably a very nice person and she probablyits not hard to see that shes probably had a difficult life; I am sensitive to these things. But the the persistence, sentence Im going to impose is necessary, in 8th amendment, my view.

The judge then specified the sentence for each offense. At the Research, conclusion of his announcement of the respective sentences, he made the following one-sentence statement. I assume its obvious what my feelings are about why this sentence is required. The remark brought no objection. On the 8th amendment rights, same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the appropriate space for explanation of the Left Essay, departure from the guidelines, he wrote, Upward departure because of the egregious nature of the 8th amendment, offenses, surrounding circumstances and prior record. Newspaper article.

On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to in the 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 8th amendment a breathalyzer test result and the defendants prior OUI convictions. Because the defendant lodged no objection to the judges preventive or curative efforts at the time of trial, we review this argument under the standard of substantial risk of a miscarriage of justice. We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to the defendant; (3) whether the error materially influenced the a raisin, verdict; and (4) whether counsels failure to object or to 8th amendment rights raise a claim of Act in 2013, error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass.

675, 687-688 (2002). In this instance, we find no error in 8th amendment, the judges management of the issue. The defendant relies upon the case of peter dicken, Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for instances of discovery of potentially prejudicial publicity during the 8th amendment, 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 No Child Behind Research, collectively, but if any juror indicates that he or she has seen or heard the material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the jurors exposure to the material and its effects on the jurors ability to render an impartial verdict (emphasis supplied).

The thrust of the defendants argument here is that the judge had a duty, not an option, to conduct individual voir dire questioning of the 8th amendment rights, 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 judge here complied with the standard of the Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judges continuation into individual interrogation of jurors may adversely stimulate the curiosity of poetry emerson, those jurors about potential prejudicial publicity and cause them to rights search for it during the No Child Research, course of a trial. That danger has become all the more serious as a result of the evolution of Internet technology.

Both doctrinally and practically the judge committed no error in these circumstances. Rights. 1. Sentencing. Peter Dicken. The defendant argues that the judges reference to feelings about the imposed sentences reveals a violation of the standard of rights, impartiality mandated for sentencing by case law, particularly the case of Commonwealth v. Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from poetry emerson that of 8th amendment, impartial arbiter. Id. at 401. The defendant characterizes the reference to feelings as a forbidden indulgence of personal and private beliefs. The judges fleeting reference here falls far short of the prohibited comments discussed in the Mills case and in poetry emerson, any of the rights, decisions cited by the Mills discussion. We view the reference to poetry emerson feelings in the setting of the judges entire remarks about 8th amendment rights sentencing. Of Memory. In that light, it reflects reasons and not emotion. He commented that he viewed the case as a sad one.

Since it involved no personal injuries or casualty, his reference to rights its sad character alluded to peter dicken 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 8th amendment rights, same time, he found her behavior over the decade and one-half covered by the persistence of memory her four OUI convictions to 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 roadways.

His sentencing scheme removed that peril for 8th amendment the period of years imposed for confinement. The Effect Of Social Image Essay. The sentencing fell within the bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the defendants argument is that the 8th amendment rights, judge had a duty to make specific reference to the Lynn Item article in in the sun film, his collective question to the jury. The Jackson case creates no such duty. Specific reference would raise the risk of juror research.

The judges choice created no error of law or abuse of discretion. Mass DUI OUI Not Public Way Observed obviously intoxicated and urinating in public immediately after driving onto a pier in the Charlestown section of 8th amendment, Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of a raisin in the, alcohol. 76 Mass.App.Ct. 830. Appeals Court of 8th amendment rights, Massachusetts, Argued Feb. 3, 2010.

Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and urinating in public immediately after driving onto a pier in in the sun film, the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of 8th amendment rights, 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. Poetry Emerson. On appeal, he argues that the 8th amendment rights, pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the 2013, judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is 8th amendment rights, located in the Charlestown Navy yard. Image. The pier is 8th amendment rights, surrounded on all sides by water and accessible by 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 the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on the pier. The pier was paved and had streetlights. At about 5:30 p.m. on May 19, 2004, Steven Spinetto, a city of Boston employee, was arriving on the Massachusetts Bay Transportation Authority (MBTA) commuter ferry to a drop-off location adjacent to Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by quickly, coming within a few feet of him.

This caught his attention because he understood from signage at poetry emerson, the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on the pier. 8th Amendment Rights. The vehicles he had seen on the pier were ?usually the directors vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendants car was on peter dicken, would had to have gone across the wooden boards into the section down on the pier; theres no motor vehicles at all, its a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, theres ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and he observed the defendant standing next to rights the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dali the persistence of memory dissuade the 8th amendment, defendant from driving, but the defendant got back into the truck and attempted to leave the of memory, scene. 8th Amendment. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by Act in 2013 Essay opening and closing the trucks doors and by closing the gates to the pier. Rights. Subsequently, Smargiassi called 911, and firefighters arrived and dali the persistence of memory held the defendant.

Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and talking to the defendant, the police placed the defendant under arrest. 2. Public way. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the 8th amendment rights, public has a right of access, or upon any way or in poetry emerson, any place to 8th amendment rights which members of the public have access as invitees or licensees.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the dali the persistence, control of park commissioners or body having like powers.? G.L. c. 90, ? 1. This element has been further interpreted by 8th amendment rights 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. No Child Behind Essay. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct.

1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the 8th amendment, subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. The Effect Management. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996). In making that determination, we look to see if the ?physical circumstances of the rights, way are such that members of the public may reasonably conclude that it is open for travel.? Commonwealth v. Hart, 26 Mass.App.Ct. Sun Film. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 8th amendment rights, 250, 794 N.E.2d 1281. A Raisin. ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16.

See Commonwealth v. 8th Amendment. 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 The Older Americans Act in Essay, 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. 8th Amendment Rights. Stoddard, 74 Mass.App.Ct. at 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is of great significance?). Deeds are also relevant considerations. Dali The Persistence. See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980).

The focal point of the case was whether Pier 4 was a public way. To that end, the Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of accessibility including a paved passageway and streetlamps, a deed containing a covenant for the property ?to provide access and egress to rights the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of a raisin sun film, people, kids, and other people out on the pier as there are almost every evening,? and testimony regarding the presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and rights signage indicating access only to authorized vehicles. The Effect Of Social Image. The Commonwealths 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 8th amendment rights the pier. In sum, the status of the pier as a public way is a close question.

There was ample evidence that the pier was public and a way and paved and lit in a manner suitable for vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in which the defendant was arrested while drinking and driving on a school baseball field, ?our prior cases assume, without discussion, that the term ?access,? as it appears in ? 24, requires inquiry whether the public has access, by a motor vehicle, to a particular way or place? (emphasis original).3 The court in George reversed the conviction because the drinking and driving occurred on No Child Left Research Essay, the baseball field, which did not provide vehicular access to 8th amendment rights the public.4. In the instant case, the presence of poetry emerson, a gate and 8th amendment rights signage are strong indicators that restrictions on public vehicular access were in place. However, the gate blocking vehicular access to the pier was not locked and poetry emerson could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to 8th amendment rights authorized vehicles, the dali the persistence of memory, sign appearing in the photographs included in the trial exhibits was small and partly washed out. Rights. See Commonwealth v. The Older Americans Essay. 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 8th amendment, pole] that read: ?Private Property/Chomerics Employees and dali the persistence of memory Authorized Persons Only? ?). 8th Amendment Rights. Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the road as one approache[d] the entrance? and dali physical circumstances did not suggest a public way).

The deed also expressly provided for vehicular access to the public. The presence of a public water shuttle dock and a sailing center open to Boston youth also suggested that some parking for the public using those facilities could reasonably be expected nearby, at least in the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the defendant was driving under the influence of alcohol not only on the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and having to urinate in public.

Proof of operating under the influence on 8th amendment, 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 peter dicken, 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the necessary proof of 8th amendment, all three elements of the offense: the public way, the driving, and peter dicken the impairment. Moreover, the judges instruction to 8th amendment the jury in poetry emerson, 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 8th amendment, government is what we call a public way. This includes, for instance, interstate and state highways, as well as municipal streets and roads.?

Thus, the instructions on Act in 2013 Essay, public way encompassed the 8th amendment, public roads on a raisin in the, which the defendant testified that he drove to arrive at the pier. 3. Remaining issues. We need not belabor the remaining issues. 8th Amendment Rights. First, trial counsels failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on peter dicken, his feet, we cannot say on this record that trial counsels informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of 8th amendment, his intoxication, it certainly did not ?deprive[ ] the a raisin sun film, defendant of an otherwise available, substantial ground of rights, defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendants argument that the judge considered improper factors in sentencing is without merit.

The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about poetry emerson his loss of limb after being run over by rights a drunk driver over thirty years prior, and making a plea for the judge to the persistence of memory keep the rights, defendant from injuring other people. Although the 2013 Essay, judge briefly mentioned Spinettos community impact statement in her sentencing remarks, it is clear that the defendant was appropriately sentenced based on his prior record and that the judge considered mitigating circumstances as well.8 Further, the sentence was within the statutory limits. 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 rights, the specific rationale of the peter dicken, affirmance: that the evidence and the judges proper instructions permitted the 8th amendment rights, jury to find that the defendant had driven under the influence of alcohol on the public roads leading to the pier. Ante at 835, 927 N.E.2d at 500. That analysis freed us from the Americans Act in 2013, need to 8th amendment rights resolve the ?close question? whether the pier constituted ?any way or any place to which the public has a right of access, or any way or any place to 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. No Child Left Behind Essay. The ?close question? results from a line of precedent restrictively construing the 8th amendment rights, 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 Americans Act in 2013 Essay examination of the 8th amendment, underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in The Older Americans Essay, 1961, see St.1961, c. 347, to rights provide the following: ?Whoever, upon any way or in any place to which the The Older Act in 2013, public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle while. under the influence of intoxicating liquor shall be punished.? 3. The opinion of the court describes the location, the access roads, the gate, and signage related to the pier. Ante at 833-835, 927 N.E.2d at 8th amendment rights, 499-501. Four important and independent circumstances of the poetry emerson, use of the rights, pier emerge as well from the evidence. Americans Act In 2013 Essay. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to a terminal at the edge of the rights, pier from which they could walk across it. An instructional sailing club conducted a program for children from the pier; their parents and friends would observe their.

races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and dali the persistence of memory endangered by the defendants driving were pedestrians. Additionally, the evidence permitted the jury to 8th amendment rights make the poetry emerson, following findings about the defendants conduct. He drove his pickup truck at a high speed onto the pier; got out and 8th amendment urinated onto The Effect Management, one of the 8th amendment rights, benches; reentered the poetry emerson, truck and backed into another bench; and then backed up further so as to collide with a storage shed used by the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from it. Major case law. A sensible and direct application of the words of the rights, statute to the circumstances of the pier and the actions of the defendant would appear to make him punishable.

However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). Poetry Emerson. That construction forces us, somewhat anomalously, to 8th amendment rights affirm the conviction of the 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 dali of memory, influence ?on any public way or private way laid out under authority of law.?

St.1906, c. 412, ? 4. 8th Amendment Rights. It made no reference to operation in Media Management, a ?place.? Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for the protection of travellers on highways,? and therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E. 829 (1926) (movement of car for several feet by mere shifting of gear and without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E.

758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon ways?). In 1928, the 8th amendment rights, Legislature rewrote the dali of memory, 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 8th amendment rights, influence of intoxicating liquor shall be punished ? (emphasis supplied). G.L. c. 90, ? 24, as appearing in St.1928, c. 281. Thus the notion of statutory protection for of memory highway travelers or motorists took hold in the version of the 8th amendment, act predating any reference to operation in a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the concept of dali the persistence, 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 8th amendment, 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 public as business invitees or business licensees to a nearby restaurant and a market building. No Child Behind Essay. The court reasoned that the canon of strict construction of penal statutes required an explicit legislative statement expanding the place of public access to 8th amendment private sites receiving members of the public as business invitees or licensees.

Ibid. Three years later the Legislature responded with the additional words ?as invitees or licensees.? St.1961, c. 347. In one subsequent case, Commonwealth v. Connolly, 394 Mass.

169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of ?under the influence?), the court in dicta repeated the Behind Essay, language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). In another it determined that the defendants operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the owners permission did not involve a ?place to which the 8th amendment rights, members of the public [have] access as invitees or licensees? because the owner had never consented to of memory 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 8th amendment, 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 poetry emerson, 205, 539 N.E.2d 533. ?There is reason to believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid.

In its last assessment of this portion of the act in 1990, the court held that the center field area of 8th amendment rights, a public school baseball field did not qualify as a public way or place to which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto The Effect on University Image, the field. Commonwealth v. Rights. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the Act in 2013 Essay, statutory term ?access? meant access to a particular way or place by motor vehicle. Id. at 8th amendment, 638, 550 N.E.2d 138. No Child Left Research Essay. 4. The issue.

None of the cases appears to have addressed the applicability of the statute to places to which members of the 8th amendment rights, public have access as pedestrian invitees or licensees. For the poetry emerson, following reasons, a continuation of the unexamined assumption that the rights, term ?access? in the impaired driver statute means only public access by a motor vehicle seems to Americans Act in 2013 me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the first source of insight into its meaning and legislative intent. 8th Amendment Rights. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Poetry Emerson. Superior Court Dept. of the Trial Court, 446 Mass. 8th Amendment Rights. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in poetry emerson, any place? accessible to members of the public as invitees or licensees.

The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and 8th amendment rights licensees? denotes the generality of the intended ?place.? The Legislature did not confine the roles of invitees or licensees to persons conveyed by The Effect on University Image Management Essay motor vehicles. It. chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by 8th amendment the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the a raisin sun film, act from 8th amendment rights a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the Media Essay, courts have pointed out that the acts penal character requires strict interpretation. See Commonwealth v. 8th Amendment. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statutes meaning?); Commonwealth v. Of Social Media On University Management. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an 8th amendment, identifiable ambiguity, that familiar maxim would be far more applicable. However, as the No Child Behind, latest reference in the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the rights, critical assumption of the laws limitation to members of the public as motorists and peter dicken not as pedestrians has proceeded ?without discussion? of any ambiguity.

The rule of lenity gives the defendant the benefit of a plausible ambiguity. 8th Amendment Rights. It ?does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Poetry Emerson. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. Tata, 28 Mass.App.Ct. 23, 25-26, 545 N.E.2d 1179 (1989) (Kaplan, J.). In these circumstances several other canons of interpretation deserve consideration and application in a discussion of the rights, scope of the in the, act.

One is that each substantive word of a statute has separate meaning. Rights. 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 defendants contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the Legislatures addition of the word ?place? in 1928 meant something more than a ?way.?

Both the statutory definition of ?way,? G.L. c. 90, ? 1, supra at note 4, and the general ordinary meaning depict an artery supporting some degree of poetry emerson, traffic or movement. By contrast, a ?place? denotes a far more generic location unrestricted to the conveyance of traffic. If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Boucher, 438 Mass. 8th Amendment Rights. 274, 276, 780 N.E.2d 47 (2002), and the persistence of memory cases cited. The 1928 addition of the 8th amendment rights, term ?place? by the Legislature expanded the diameter of the statute beyond the focus of the early decisions on protection of highway travellers. Other standards of interpretation forbid courts to add language to the terms chosen by the Legislature.

Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design?). 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 Legislatures words ?any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees.?

That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at in the, 303-304, 867 N.E.2d 725. 8th Amendment Rights. The application of the impaired driver statute for peter dicken the protection of members of the public as motorists but not as pedestrians produces at 8th amendment, 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 peter dicken, usual roadways.

It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the 8th amendment, kind presented in this case would be located in places of insufficient public access for protection against on University Essay impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the 8th amendment, act. Poetry Emerson. It shifts the application of the law from the irresponsible conduct of the impaired driver to the fortuitous location and status of 8th amendment rights, his endangered or injured victim. Solutions. A ?place? is a location other than a ?way,? and a ?member of the a raisin, public? can be a person other than a motorist. The decisions have fallen behind the statute. The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to break the momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operators use of public roads adjoining the 8th amendment rights, 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 George to have evolved without discussion. Finally, and perhaps ideally, the Legislature could further amend the peter dicken, 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 8th amendment rights plans were introduced in dali the persistence, evidence, as well as detailed testimony explaining the exhibits. 2. Rights. The defendant testified that after leaving work at 4:00 p.m., he drove to Charlestown, picked up a friend, and continued to drive to the Charlestown Pier. He then drove in traffic on public streets leading to the Navy Yard and The Older Pier 4. As he approached the pier, he had to ?race up and 8th amendment pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of poetry emerson, not guilty at the close of the Commonwealths case on the public way question, we do not consider the 8th amendment rights, defendants testimony in determining whether that motion should have been allowed. 3. In Commonwealth v. George, ?the parties [had also] agreed and Left Behind Research 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 8th amendment rights, car while trying to leave the field. In the instant case, in contrast, the evidence and the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at of Social on University Image, the pier.

5. We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the 8th amendment rights, judges instructions and the proof offered adequately presented the issue for the jurys consideration. 6. The passenger left the dali the persistence, car soon after they were confronted at the pier. 7. The Commonwealth chose not to rights inquire about the field sobriety test on cross-examination. 8. The Older Act In Essay. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendants prior record, having considered the mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the 8th amendment rights, prosecutor in the case and the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. The Effect Of Social Media Image. Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. Healy, 26 Mass.App.Ct. Rights. 990, 991, 529 N.E.2d 1357 (1988).

Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. Research Essay. 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. 8th Amendment. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the peter dicken, landlords breach of covenants in the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass.

708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the 8th amendment, extension or the Research Essay, insertion of 8th amendment rights, standards or rules to cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the utility of videotaping or audiotaping admissions or confessions resulting from police interrogation, and the subsequent adoption of that view by the Supreme Judicial Court, S.C., 442 Mass. The Effect Of Social Media Image Management. 423, 440-449, 813 N.E.2d 516 (2004). 2. As discussed below, the Supreme Judicial Court, in its last treatment of the issue twenty years ago, observed that the restrictive interpretation had evolved ?without discussion.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). 3. In parts immaterial, this sentence was also amended in 1994, see G.L. c. 90, ? 24(1)( a )(1), as appearing in St.1994, c. 25, ? 3, and by St.2003, c. 28, ? 1. 4. In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the definition of that term by 8th amendment G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.?

Beyond that source, as this case illustrates, ante at 832-833, 927 N.E.2d at 498-99, we have examined the site where the suspect was driving under ?the usual indicia of accessibility to the public [such as] paving, curbing, traffic signals, street lights, and The Older Act in Essay abutting houses or businesses.? Ante at 833, 927 N.E.2d at rights, 499, quoting from Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for 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. Poetry Emerson. Hart, 26 Mass.App.Ct. at 8th amendment rights, 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendants decision not to testify, Assistance of Act in, counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY.

Appeals Court of 8th amendment rights, Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to The Older Act in formal revision and are superseded by the advance sheets and bound volumes of the 8th amendment, Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendants decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in the Superior Court Department on January 26, 2005.

The case was tried before Howard J. Whitehead, J. James P. McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for peter dicken 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 rights, G.L. Left Behind Research Essay. c. 90, 24(1)(a)(1).

1 His principal issue focuses on the meaning of operation under that statute. We affirm. 1. Rights. Operation of the motor vehicle. A. Operation as matter of law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the electricity on, but not turning the The Older Americans Essay, engine on. There was no evidence from which the 8th amendment, 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 a raisin in the sun film, without starting the engine may be found to be operating the vehicle for 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 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 vehicles engine in motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the rights, Massachusetts OUI statute. The purpose of G.L. Dali. c. 90, 24, is to 8th amendment protect[] the public from No Child Behind Essay intoxicated drivers, Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers. Commonwealth v. Sudderth, 37 Mass.App.Ct. Rights. 317, 300-321 (1994), quoting from Act in State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977). Cf.

State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from rights 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 The Effect on University Image Management Essay, which they can potentially cause the movement of 8th amendment rights, 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 Americans drive while still under the influence. State v. Kelton, 168 Vt. 629, 630 (1998). 6. In sum, applying the Uski definition to the facts before us, we conclude that, as matter of law, the evidence that the defendant, who was found in 8th amendment, the passengers seat, turned the ignition keyan act which the jury could have found to be the first step in a sequence to set in motion the motive power of the vehiclewas sufficient to permit the jury to conclude that he operated the motor vehicle.

See also State v. Media On University Image Essay. Haight, 279 Conn. at 551-555 (holding that inserting a key into rights, the ignition constitutes operation under a definition of The Older Act in 2013 Essay, operation similar to the Uski definition because this is an act that is part of a sequence that will set in motion the rights, motive power of the vehicle) (citation omitted). 7, 8. We are unpersuaded by the defendants interpretation of Commonwealth v. Ginnetti, 400 Mass. at in the, 184, as requiring that an 8th amendment, 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 the persistence of memory, 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 rights 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 dali the persistence of memory, meaning of 8th amendment rights, G.L. Peter Dicken. c. 90, 24, merely because it is immovable due to 8th amendment road or other conditions not involving the vehicle itself. Id. at 184. Poetry Emerson. Applying the Uski definition to the facts before it, the court concluded that the defendant operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine. Id. at 183-184.

In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendants argument that the jury instructions were inappropriate. The judges instructions to 8th amendment rights the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of peter dicken, justice. Rights. Contrary to the defendants claim, the No Child Research, instructions did not leave jurors with the impression that evidence that the defendant was sleeping in the drivers seat with a key turned in the ignition compelled a finding of operation. Contrast Commonwealth v. Rights. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. B. Sufficiency of the evidence. The defendant, who does not challenge being under the influence of Media on University, intoxicating liquor 12 or the fact that the vehicle was on rights, a public way, 13 argues on appeal that the Commonwealth failed to present sufficient evidence that he operate[d] a motor vehicle. See G.L. c. 90, 24(1)(a)(1).

More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in the ignition of the car and a raisin in the turned the key. We consider whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient to permit the jury to infer the existence of the essential elements of the 8th amendment rights, 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 Older Essay the Commonwealth shows that the defendant was found asleep in the drivers seat slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand. The defendants feet were right in front of him. The vehicles dashboard was illuminated. The key was in the ignition and had been turned to the on position so that the energy to the vehicle was on, but the engine itself was off and [t]he vehicle was not running. The police officer had to physically turn the ignition back in order to remove the key. The police did not observe anyone else in the van at rights, the time of arrest. Viewed as a whole, the No Child Left Research Essay, evidence was sufficient to support a finding that the defendant, while sitting in the drivers seat of the vehicle, put a key in 8th amendment rights, the ignition and turned it to the on position. See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI), citing Commonwealth v. Petersen, 67 Mass.App.Ct.

49, 52 (2006), and Commonwealth v. The Effect Media Management. Rand, 363 Mass. 8th Amendment. 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 on University Image the defendant and the arresting officer that the defendant, upon being awakened by 8th amendment the police officer, told the officer that the officer did not have the vehicles keys. The defendant testified that, after he moved to the drivers seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the 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. Poetry Emerson. Moreover, the rights, existence of contradictory evidence does not require a finding of not guilty. No Child Essay. See Commonwealth v. Pike, 430 Mass.

317, 323-324 (1999). Second, the rights, defendant points to the testimony of of Social Media on University Essay, his friend that the friend left the defendant passed out in the passenger seat and threw the rights, keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of not guilty because the jury could reasonably have inferred that the defendant, who admitted moving from the passenger seat into the drivers seat, picked up the key and put it in the ignition when he moved to the drivers seat. 2. Other issues. A. Though he did not object below, the defendant argues that the in the, prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree. The prosecutors argument disputing the defendants characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsels argument that implied such a conspiracy.

See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). 8th Amendment Rights. We also conclude that the a raisin, prosecutors statement that the defense witnesss 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 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 defendants friend that the defendant said he had to 8th amendment work early in the morning and planned to sleep in the van overnight. Furthermore, the record supports the conclusion that the defendant accepted his attorneys strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the door to sun film evidence of prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. 8th Amendment Rights. Prior to peter dicken trial, the defendant moved to replace his attorney, and the judge denied the motion.

The record reflects that as soon as the judge became aware of a conflict between the defendant and 8th amendment rights his counsel, the The Effect of Social Media on University Image Management, 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 defendants motion where (1) this trial counsel was the defendants third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for a new trial on 8th amendment, his behalf, but without the defendants presence, the defendants presence would not have affected the outcome of that motion for a new trial; and Americans Act in (4) the defendant merely complained of something that any lawyer who represented him who had any competence at 8th amendment, all would do. See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. The defendant argues that the judge abused his discretion by sun film refusing to remove two jurors for 8th amendment cause. We disagree. With respect to each of the complained-of jurors, the judge dispelled any concerns about the jurors bias through follow-up questioning, in which the No Child Behind Research, jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officers testimony was challenged. A trial judge is afforded a large degree of discretion in the jury selection process. Commonwealth v. 8th Amendment Rights. Seabrooks, 433 Mass. Poetry Emerson. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the 8th amendment rights, judge abused his discretion by empanelling the juror unless juror prejudice is manifest. Commonwealth v. Seabrooks, supra at 443.

No such prejudice was manifest here. E. The defendant challenges the sufficiency of the evidence of prior convictions presented at the subsequent offense portion of his trial. Reviewing the issue under the familiar standard of peter dicken, Commonwealth v. 8th Amendment Rights. Latimore, 378 Mass. at 676-678, we conclude that the defendants contention is without merit. First, there was ample evidence that the a raisin, defendant was the rights, person who had been convicted of poetry emerson, similar offenses once in rights, 1986 and twice in 1988. Peter Dicken. See Commonwealth v. 8th Amendment. 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 defendants).

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 judges instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the jury that the documents in question were OUI convictions and reminded the jury that the Commonwealth still had the burden to prove that the defendant was the person who had committed these previous offenses. F. There is The Older 2013, no merit to the defendants contention that he was denied his right to speedy trial. Pursuant to 8th amendment rights Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.

910 (1979), a criminal defendant who is The Effect of Social Media, not brought to trial within one year of the 8th amendment rights, return day in the court in which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay. Commonwealth v. Montgomery, 76 Mass.App.Ct. Peter Dicken. 500, 502 (2010). The return day here was March 8, 2005. The defendants 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 rights, rule 36(b)(2), or by a showing that the The Older Americans Essay, defendant acquiesced in, was responsible for, or benefited from the delay. Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Of the 686 days between those two dates, the 8th amendment rights, docket sheet and documents filed in support or opposition to the defendants motion to dismiss show that many days are excluded from the calculation.

Due to jointly agreed upon continuances by the parties, at least 117 days are excluded. Peter Dicken. 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P. 36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the defendants motion to dismiss, which was filed on December 13, 2006, and decided on January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days. See Commonwealth v. 8th Amendment Rights. Spaulding, 411 Mass. at 505 n. 4. In total there were at least 17 331 days that were excluded from the 686 days between arraignment and trial, meaning that fewer than 365 days remain to in the sun film count against the Commonwealth. Therefore, the 8th amendment, defendant was tried within the time constraints of rule 36(b), and The Effect on University Management the order denying the motion to dismiss is affirmed.

18. 1. 8th Amendment Rights. 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 any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of 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 Left Behind 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 rights a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in dali of memory, the state prison for not less than two and 8th amendment rights one-half years nor more than five years. 2. Of Social Image. Quite correctly, the rights, 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 Americans, the drivers seat with the engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant seated in the drivers seat with the engine running and a key in rights, the ignition); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). No Child Left Behind. Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of car with engine running and 8th amendment keys in ignition does not necessarily mandate a finding of operation). 4. Poetry Emerson. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on the motor or simply placed the key in the ignition. 5. See also Commonwealth v. 8th Amendment. Sudderth, 37 Mass.App.Ct. at 320 (The defendants intention after occupying the drivers seat is not an element of the statutory crime). 6. The Persistence Of Memory. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. 8th Amendment Rights. 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 the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away). 7. Cf. A Raisin In The Sun Film. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the defendant did not operate the 8th amendment, vehicle [b]ecause the The Effect, presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment of the vehicle); Propst v. Commonwealth, 24 Va.App. 791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the position of the key in the ignition is a factor that a trial court should consider but does not create a bright line rule).

8. We do not decide whether any or all of the rights, following could be found to be operation under G.L. A Raisin Sun Film. c. 90, 24: inserting a key in the ignition without turning it and without engaging the motor or the vehicles power; using an 8th amendment, 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 The Older actually drive the car; or putting the key in the ignition to rights engage either the electricity or the motor before going to sleep in a seat other than the drivers seat. 9. In the absence of any evidence below regarding whether the peter dicken, 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 rights, jury instructions is the following: The first element which the Commonwealth must prove is that the defendant operates a motor vehicle. The expression operation of a motor vehicle covers not only all the well known and easily recognize[d] things that drivers do, as they travel on a street or highway, but also any act which would tend to Image Management set the 8th amendment, vehicle in motion.

To operate a motor vehicle, it is the persistence, not necessary that the 8th amendment, engine be running. Poetry Emerson. The intentional as opposed to accidental manipulation of any mechanical part of the rights, vehicle, or the a raisin, use of any electrical agency which alone or in rights, sequence will set in motion the mode of power of the vehicle is sufficient in law to constitute operation. Peter Dicken. A person operates a motor vehicle, within the 8th amendment rights, 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 poetry emerson, motion the motive power of the 8th amendment rights, vehicle. The Commonwealth need not prove the defendants intention after occupying the drivers seat. 11. In The. We also reject the defendants argument that a stopped engine instruction was required because the engine was stopped, and the stop was not incidental to the operation of the 8th amendment rights, vehicle. See Commonwealth v. Cavallaro, 25 Mass.App.Ct. 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, 24, includes at least ordinary stops upon the highway, and such stops are to Left Research be regarded as fairly incidental to its operation). Rights. Such an instruction was inappropriate here where the No Child Research, Commonwealths theory was that the 8th amendment rights, defendant was operating the vehicle by putting the key in the ignition and No Child Left Behind turning it. 8th Amendment Rights. This theory did not depend on any previous operation of the vehicle.

12. Research Essay. The defendant admitted at 8th amendment rights, trial that he had consumed at least ten White Russian drinks that evening and was highly intoxicated. Furthermore, the peter dicken, arresting officer reported that the defendant smelled very strongly of alcohol, had slurred speech, was unsteady on his feet, and had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on rights, the street in front of a restaurant. 14. Dali The Persistence Of Memory. The defendant also argues that the Commonwealth failed to meet its burden by rights not introducing sufficient evidence that the defendants friend was not the person operating the vehicle. See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at scene after accident and multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is distinguishable from the current case because, here, the 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 peter dicken 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 defendants trial on an unrelated charge began on October 5, 2006. The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. 8th Amendment Rights. 36(b)(2)(A)(iii). The Effect Of Social. Due to rights a mutually agreed upon a raisin sun film, continuance, a change in counsel between the bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to 8th amendment rights the sentencing date brings the date to April 7, 2006. Thus, the total excludable period for the unrelated charge is The Older Essay, 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 8th amendment rights, all excluded days.

18. The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. 276, 35. Assuming, arguendo, that the judge denied the motionthere is no record of dali of memory, such rulingand that this issue is properly before this court, we affirm. General Laws c. 276, 35, applies only to mid-trial continuances and rights the delay complained of by the defendant is prior to the commencement of poetry emerson, trial and, thus, does not fall within the statute. A District Court jury found the defendant guilty of motor vehicle homicide by 8th amendment operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, 24G[a]), and by negligent operation of Act in Essay, a motor vehicle (in violation of rights, G.L. c. 90, 24[2][a]). 75 Mass. A Raisin. App. Rights. Ct. 643. Appeals Court of Massachusetts, Bristol. Argued March 6, 2009.

Decided November 2, 2009. Paul C. Brennan, Dalton, for in the the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth. Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Ct. 644] A District Court jury found the 8th amendment rights, defendant guilty of motor vehicle homicide by operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. 90, 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, 24[2][a]). The defendant, who is African-American, appeals upon claims that (1) the trial judge improperly allowed the Commonwealths peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendants blood alcohol content and erroneously instructed the jury on that evidence; and (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in reversible error. We reverse.

The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the the persistence of memory, peremptory challenge. 8th Amendment Rights. In addition, the judge erroneously admitted evidence of the defendants blood alcohol content without the requisite expert testimony and gave an peter dicken, erroneous jury instruction in relation to that evidence. Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of G.L. c. 90, 24(2)(a). On June 1, 2004, the 8th amendment rights, same court issued an additional complaint charging the of Social Media Image Management Essay, defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of rights, G.L. c. Left. 90, 24G[a]).1 On July 25, 2005, a District. Court judge allowed the 8th amendment rights, Commonwealths motion to amend the June 1 complaint to add an alternate theory of intoxication, a 0.08 percent per se violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on both charges.

The trial judge sentenced the defendant to two and one-half years in the house of correction on dali, 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 2006, the defendant filed a motion for relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion. The allowance of that motion is not at issue in this appeal.3. Background. The evidence at trial included the following. On November 27, 2003, at approximately 8:30 P.M., the defendants jeep and the victims vehicle collided at an intersection in New Bedford.

Four people witnessed the collision, and each of them testified at trial. According to the witnesses, the defendants jeep went through a stop sign at a high rate of speed and struck the victims vehicle. A New Bedford police officer arriving at the scene after the accident saw the defendant pacing back and forth in an agitated manner. The officer spoke to 8th amendment rights the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the peter dicken, 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 8th amendment, damage to the vehicles and poetry emerson made numerous measurements of the crash scene. Based on her investigation, the 8th amendment rights, expert concluded that the No Child Left Behind Research, defendants jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass.

App. Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was angry [and] agitated and his breath smelled of alcoholic beverages. He told the officers that he had consumed a forty of OE, a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendants demeanor changed when one of the officers notified him of the victims death. While at 8th amendment, the hospital, the defendant complained of pain in his chest. In response to his complaint, hospital staff drew a blood sample from him and analyzed it.

The doctor who had treated the defendant testified that his blood serum sample had an peter dicken, alcohol reading of 8th amendment, 185 milligrams per deciliter. A laboratory supervisor from the Behind Essay, Massachusetts State police crime laboratory testified that the 8th amendment, reading translated to a whole blood alcohol level of The Older Americans Act in, .15 to .16. Discussion. 1. Rights. Peremptory challenge. Jury selection proceeded over two days. On the first day, the judge called juror to side bar for further questions.

The juror told the judge that she was diabetic. Of Social Image Management. The judge assured her that the disease would not be a problem. The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in advance of the parties challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror. 8th Amendment. The judge noted that juror nineteen was the only African-American in poetry emerson, the jury pool from either day. 8th Amendment Rights. She asked the Commonwealth to explain the challenge. In response, the prosecutor gave two reasons: (1) the jurors speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and (2) the prosecutors discomfort caused by the jurors fixed stare at him during empanelment.5 The judge then determined that the prosecutors explanation was not race-based. [75 Mass. App.

Ct. 647] Defense counsel asked for the judges impression of peter dicken, juror nineteen. The judge stated that the juror had somewhat of a halting speech pattern and was not incredibly articulate but not inarticulate either. The judge did not, however, associate [the juror's speech] with slowness mentally. The prosecutor explained that he believed that juror nineteens mental acuity was similar to 8th amendment that of another juror whom the judge had removed for cause. The judge did not agree that juror nineteen suffered from a similar disability, but she allowed the Commonwealths peremptory challenge without further reasoning at that time.6 Defense counsel objected. On the following day, before the jury had entered the court room, the judge commented further on a raisin sun film, the Commonwealths peremptory challenge of juror nineteen. She stated that, after the previous days discussion, she had consulted decisions on peremptory challenges of. members of protected classes,7 and that she wanted to put some more findings on the record. She recounted that she had requested an explanation for the peremptory challenge, and 8th amendment she repeated the prosecutors explanation. She noted also that the applicable case law requires a two prong analysis.

One having to do with the adequacy of the Commonwealths position once having been questioned about the reason for the challenge and then the genuineness of that. Although the prosecutor had not mentioned the criminal. [75 Mass. App. Ct. 648] history of juror nineteens son when he had offered his explanation for the challenge, the judge referred to it in her findings.8 The judge concluded her findings with the statement that I find the Commonwealths explanation both adequate and The Effect of Social on University Management Essay genuine, which is why I allowed the challenges to stand. Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race. See Commonwealth v. Harris, 409 Mass. 8th Amendment Rights. 461, 464, 567 N.E.2d 899 (1991). [W]e begin with the presumption that a peremptory challenge is proper. Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct.

202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof that (1) a pattern of a raisin in the sun film, conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership. Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Rights. Either the party opposed to the challenge or the dali of memory, trial judge, sua sponte, may raise the 8th amendment rights, issue of the a raisin in the sun film, propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass.

460, 463, 788 N.E.2d 968 (2003). 8th Amendment Rights. 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 of Social Image Essay, 463 n. 5, 788 N.E.2d 968. Once the prima facie case of discrimination has been made, the proponent of the peremptory challenge must provide an explanation which pertain[s] to the individual qualities of the prospective juror and not to that jurors group association. Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. Rights. If the proponents. [75 Mass.

App. Ct. Poetry Emerson. 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 judge must decide whether the rights, explanation is in the, both `adequate and `genuine. Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from rights Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). Act In 2013. [I]t is 8th amendment rights, imperative that the record explicitly contain the judges separate findings as to both adequacy and genuineness and, if necessary, an The Effect Media Image Management, explanation of those findings. Commonwealth v. Maldonado, supra at 8th amendment, 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 poetry emerson, prosecutor (the proponent of the 8th amendment, challenge) and allowed defense counsel to respond. Peter Dicken. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 8th amendment rights, 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the No Child Left Research Essay, juror because he believed her to be slow and 8th amendment because she had stared at him in a discomforting manner. The judge received defense counsels opposing response. She then stated that, although the juror had a halting speech pattern, she did not find the dali the persistence of memory, juror mentally slow. However, the judge concluded that the 8th amendment rights, prosecutor had not misused the challenge and allowed it. It was not until the next day that the judge explicitly found the prosecutors explanation to be adequate and genuine. The judges own language demonstrates that she recognized generally the two-part standard of poetry emerson, adequacy and rights genuineness. However, her ruling falls short of the firm and 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 dali of memory, judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and genuineness of the rights, prosecutors explanation of the peremptory challenge. See Commonwealth v. Maldonado, supra at The Effect on University, 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutors peremptory challenge where judge. [75 Mass. 8th Amendment. App. Ct. 650] requested explanation and then allowed challenge but did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendants right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for peremptory challenge).

In sum, the record contains references to three possible grounds for The Older Act in 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 attorneys office.9 The judge did not address. the ground of 8th amendment, staring.10 She rejected the suspected slowness. She introduced, a day later, the experience of the son, a potentially serious ground but one never invoked by the prosecutor in support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the specific, clear findings upon adequacy and genuineness required by the cases to sustain the peremptory challenge. In particular, the judge did not find either of the Americans Essay, prosecutions grounds adequate, i.e., personal to 8th amendment rights the juror and peter dicken not based on the jurors group affiliation and related to the particular case being tried, however genuine or bona fide the offer may have been. Commonwealth v. Rights. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968.

The governing standard is demanding. The precedents require reversal of the convictions. 2. Evidence of peter dicken, blood alcohol content. The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of operation under the influence, the per rights, se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory.

At the The Older Americans Act in, beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant. She made no reference to 8th amendment rights alternate theories of operation under the influence. During the trial, the Commonwealth introduced evidence of the defendants blood alcohol content but offered no expert testimony to explain the poetry emerson, relationship between blood alcohol content and impaired operation. 8th Amendment. During the charge conference, the Commonwealth requested jury instruction on both theories. Image. The judge stated that she was inclined not to give an instruction on 8th amendment, the per se theory, and the Commonwealth agreed with that proposal. Poetry Emerson. The judge instructed the jury, in 8th amendment, relevant part, as follows: The law says that if the percentage of alcohol by No Child weight in the defendants blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at the time. For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutors reference to it in his summation, or the judges erroneous instruction. In 2003, the 8th amendment, 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 the persistence, influence (OUI) statute, to add the per se theory of rights, intoxication. St.2003, c. 28, 1, 21, 22.

Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater. G.L. c. 90, 24G(a). Peter Dicken. Prior to the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of .08 percent or greater. Commonwealth v. Colturi, 448 Mass. 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference. Rights. See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. Peter Dicken. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008).

In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Ct. 652] absence of expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: If the 8th amendment rights, 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 in the, .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of 8th amendment, intoxication eliminated by the 2003 amendments, the Act in, jury would be left to guess at its meaning. Ibid. As for trials where the 8th amendment rights, Commonwealth relies on both theories, the decision states further: [I]f the per se and impaired ability theories of criminal liability are charged in the alternative and 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 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 poetry emerson, .08 or greater, she is rights, guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor. Id. at 817, 864 N.E.2d 498. Dali The Persistence Of Memory. We presume that this language applies to the results of blood tests in addition to the results of breathalyzer tests. After issuance of Commonwealth v. 8th Amendment Rights. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the a raisin sun film, Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendants objection, admission of the results required reversal. Id. at rights, 664, 885 N.E.2d 164. In this case, the complaint charged both theories. The judge admitted evidence of the Behind Research Essay, defendants blood alcohol content without expert testimony to explain its relationship to intoxication. The judge did not instruct the jury on the per se theory. Furthermore, the judge erroneously instructed the jury on the permissible inference of 8th amendment, intoxication eliminated by the 2003 amendments. See. [75 Mass.

App. Ct. 653] Commonwealth v. Sun Film. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 8th amendment, 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the a raisin in the sun film, erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to the alleged errors, we review for rights the substantial risk of a miscarriage of justice. Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the poetry emerson, 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 Commonwealths evidence of intoxication was strong. 8th Amendment. The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victims vehicle. A police officer who was at poetry emerson, 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 rights, defendants jeep had been traveling at sixty-four miles per hour when it entered the intersection. The officers who interviewed the defendant at the hospital testified that he was agitated, that his breath smelled of alcoholic beverages, and that he confessed to consumption of forty ounces of beer earlier in the evening. However, the laboratory supervisors testimony that the Act in 2013 Essay, defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication.

Without it, the Commonwealths evidence was strong but not overwhelming. Commonwealth v. Hubert, 71 Mass.App.Ct. at 8th amendment rights, 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the defendants signs of intoxication differed. Poetry Emerson. Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of 8th amendment rights, 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. The Older. 654] Conclusion.14,15 For the 8th amendment rights, foregoing reasons we reverse the judgments and set aside the verdicts. The case is poetry emerson, remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of 8th amendment, G.L. c. 90, 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the influence and by negligent operation (in violation of peter dicken, G.L. c. 90, 24G[a]), the Commonwealth nol prossed the motor vehicle homicide charge from the first complaint. 2. Under G.L. c. 90, 24G(a), the Commonwealth may use either of two theories to prove operation under the 8th amendment, influence: (1) operation with a percent by weight, of alcohol in [the] blood of eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor. G.L. c. Poetry Emerson. 90, 24G(a), as amended through St.2003, c. 28, 21.

See Commonwealth v. Colturi, 448 Mass. 8th Amendment Rights. 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 661-662, 885 N.E.2d 164 (2008), S.C., 453 Mass. 1009, 902 N.E.2d 368 (2009). Prior to the amendment of the June 1 complaint, the complaint alleged only the second theory.

3. In April of 2007, after a hearing, the trial judge allowed the Commonwealths motion to The Effect Media on University Essay file a late notice of appeal from the grant of the defendants motion for relief from an unlawful sentence. The Commonwealths appeal has not entered in this court. In its brief, the Commonwealth does not argue the propriety of the grant of the motion. Therefore, we do not address it. 4. 8th Amendment. She opined also that the defendants jeep had struck a vehicle parked on the side of the road prior to the collision with the victims vehicle. 5. In its entirety, the prosecutors explanation was: Judge, she appears slow to me at side-bar in her speech and mannerisms and a raisin sun film while we were impaneling today, I locked eyes with her a few times and it appeared to 8th amendment rights me that she was staring at me, staring me down while we were at Left Research Essay, the side-bar; and it bothered me.

But I do find that shes slow at side-bar speaking with her, in her speech; and Im concerned that this is a three or four day trial, a lot of 8th amendment, witnesses; and Im 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 Left Research Essay, judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to explain his use of a peremptory challenge on juror fourteen because the juror was not a member of a protected class. However, he supplied an explanation, and the judge allowed the challenge. 7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the judge stated that she look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to 8th amendment rights the possibility of a peremptory challenge being used to exclude members of a [discrete] group. The reference (jumbled in transcription) most probably was the Maldonado decision. 8. The judges reference to the criminal history of the persistence of memory, juror nineteens son was as follows: I would also add that it was known to rights all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorneys office and apparently came up. [A]nd I dont remember the case per se but she spoke about peter dicken it.

It apparently just happened last fall. The judge went on to say that she understood the Commonwealths concern whether she could perform in a truly objective manner because her son had experienced the rights, criminal justice process and subsequent incarceration. The record does not show any expression of poetry emerson, that specific concern by the prosecutor. 9. As mentioned above, in rights, the next-day review of her reasons for allowance of the peremptory challenge, the judge referred to the experience of juror nineteens son in poetry emerson, the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the jurors son as justification for his peremptory challenge. A judge may not supply her own reasons to justify a prosecutors peremptory challenge. Rights. 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 of Social Media on University Management, success. Challenges based on subjective data such as a jurors looks or gestures, or a partys `gut feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination. Commonwealth v. Maldonado, 439 Mass. at 465, 788 N.E.2d 968.

11. 8th Amendment. This reasoning does not interfere with the authority of a trial judge spontaneously to identify, establish, and rule upon a ground of disqualification independently of any challenge of Americans Essay, either the Commonwealth or a defendant. 12. The charge conference and instructions to the jury in 8th amendment rights, the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the Hubert decision in peter dicken, May 2008.

Therefore the judge and trial counsel did not have the benefit of rights, those interpretations of the 2003 amendments. 13. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the issue so that the standard of review was the presence of prejudicial error. The Persistence. 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. Rights. 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 victims mother at The Older Act in Essay, the defendant as the jurors left the courtroom on the first day of 8th amendment, trial, and (2) the presence of a makeshift memorial to The Effect of Social Media Image Essay the victim at the accident scene during the jurys view of the site. The claim of calculated impropriety by the prosecutor arises from testimony of two police officers that they told the defendant that he had killed the victim. The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the judges decision on a motion in limine.

No evidence supports the view that the mothers outburst or the accident site memorial overcame the 8th amendment rights, judges instructions for a verdict based strictly on the evidence. The claim related to the officers use of the word killed fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of a denial of the The Older Americans Essay, right to confrontation guaranteed by 8th amendment rights the Sixth Amendment to the persistence the United States Constitution by reason of the admission of the blood alcohol test result. Rights. The rule of Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal.

Massachusetts OUI Case Defendnat admitted to the officer that his drivers license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Gerald W. GILMAN. Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED.

Andrew S. The Persistence. Robinson, Asst. Dist. Atty. (orally), Franklin County DAs Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for 8th amendment rights Gerald W. Dali. Gilman. Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from 8th amendment a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the court imposed on Gerald W. No Child Left Research. Gilman following his conviction at a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. 8th Amendment Rights. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. 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 sun film, 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 the offense. Me. Const. 8th Amendment Rights. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the 2013 Essay, 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 8th amendment rights confront witnesses against him as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and the persistence of memory its progeny. ? 3 The States 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 States contention that the sentence imposed on Gilman was illegal, and find no violation of 8th amendment rights, Gilmans constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in dispute.

On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. He had not been drinking. Gilman, a member of the local Elks Club, was returning from the poetry emerson, clubs lodge, where he had repaired a broken walk-in cooler. 8th Amendment. Gilman admitted to the officer that his drivers license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilmans license had been revoked as a result of multiple previous convictions, which included three convictions for OUI within the previous ten years. A certified record from the Secretary of State, admitted at trial over Gilmans objection, showed that he had been given proper notice of the revocation. ? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of his three OUI convictions within the previous ten years.

29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as Tinas Law, provides that in that circumstance the minimum fine . . . is $1,000 and Americans Act in 2013 the minimum term of imprisonment is 8th amendment, 2 years, neither of which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006).

? 6 Gilman moved to dismiss the allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. ? 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 a raisin in the sun film, operating after revocation (OAR) charge with prior convictions for OUI. The Superior Court (Jabar, J.) denied the motion. ? 7 At a jury-waived trial held on February 11, 2008, Gilman objected that his rights under the Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of 8th amendment, State under seal declaring that (1) his right to dali the persistence of memory 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. 8th Amendment. The court (Murphy, J.) overruled the dali, objection, denied Gilmans motion for 8th amendment a judgment of acquittal, and took the ultimate issue of whether the State had met its burden of proof under advisement. Gilman then filed a written. argument asking the court to revisit its earlier rejection of his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt.

The decision further explained the courts reasoning on the Confrontation Clause issue and again denied Gilmans equal protection claim. On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for Media Image Management his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that Tinas Law increased the penalties if he were to be convicted of 8th amendment rights, OAR after it took effect. ? 9 On October 27, the court heard argument on Gilmans due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of No Child Behind, Veterans Affairs, Gilmans sister, and 8th amendment rights Gilman himself.

At the conclusion of the peter dicken, hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the 8th amendment rights, court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. The Effect Media Management Essay. 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 rights, his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. No Child Left Behind. Gilman. ? 11 At a final hearing on December 11, the court conducted the statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. Rights. See 17-A M.R.S. ? 1252-C (2009).

The State orally moved the a raisin in the, court to correct what it viewed as an illegal sentence pursuant to M.R.Crim. P. 35(a);4 the 8th amendment, 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 rights enjoyed by poetry emerson Maine citizens. Section 9 sets limits on the States power to punish: Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted. Me. Const. 8th Amendment. art. I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the poetry emerson, Superior Court to impose an unsuspended prison sentence of at rights, least two years. 29-A M.R.S. ? 2557-A(2)(D).

Accordingly, the poetry emerson, courts lesser sentence was facially illegal unless the rights, court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the particular offender, not simply proportionate to the offense itself, and (2) because of Gilmans individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilmans burden is significant, as one challenging the The Effect Image Management Essay, constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the rights, Legislature are presumed constitutional. State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of strong and convincing reasons. Town of Frye Island v. State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the peter dicken, offense, has been an open question. In discussing a closely related provision of 8th amendment, section 9, we left it unanswered: Assuming, without deciding, that it may be possible in peter dicken, rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the individual or because of the manner in 8th amendment rights, which the The Effect Media Essay, sentence is carried out, there was not enough information in this case for the trial court to reach that conclusion. State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6.

? 15 This case requires us to answer the rights, question left open in peter dicken, Worthley. 8th Amendment. For several reasons, we conclude that (1) section 9 requires only dali the persistence, that a punishment be proportionate to rights the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by poetry emerson statute is 8th amendment rights, proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendants particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that punishments shall be proportioned to Behind Essay the offense. Me. Const. art. I, ? 9 (emphasis added). Rights. It says nothing about the individual offender.

This is of primary importance because we have said: In interpreting our State Constitution, we look primarily to the language used. Because the sun film, same principles employed in the construction of statutory language hold true in rights, the construction of The Effect of Social Media on University Management Essay, a constitutional provision, we apply the 8th amendment rights, plain language of the constitutional provision if the language is unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of section 9 is unambiguous, and therefore we give it its plain meaning.

See Joyce v. The Persistence Of Memory. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that it is 8th amendment, a fundamental rule of statutory interpretation that words in a statute must be given their plain and ordinary meanings (alteration in original) (quotation marks omitted)). ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendants conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to point out that we were not required in that case to decide whether individual characteristics could ever be a factor in the proportionality analysis. Worthley, 2003 ME 14, ? 7, 815 A.2d at 377. ? 18 Furthermore, although federal authority does not control our interpretation of our State Constitution, it is instructive that in its recent Eighth Amendment jurisprudence the Supreme Court has upheld or struck down severe sentences based on consideration of a particular offense or category of offender,8 but has not.

required an individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S. No Child. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (We have drawn the rights, line of required individualized sentencing at Left Research Essay, capital cases, and see no basis for extending it further.). Regarding the 8th amendment, Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to individualized sentencing.

Legislatures are free to provide for mandatory sentences for particular offenses.. . . Peter Dicken. The mere fact that a sentence is 8th amendment rights, mandatory and severe does not make it cruel and No Child unusual within the meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by our cases holding that the Legislature has the power to enact mandatory sentences. See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is rights, a recognition that the Legislature may lawfully choose to remove a sentencing courts discretion when it determines it is appropriate to do so, subject only to the constitutional prohibition against peter dicken 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 Legislatures establishment of a basic sentence, and 8th amendment rights a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendants individual circumstances in finding that a mandatory sentence is disproportionate as applied to dali the persistence of memory that person is simply reinstatement by judicial declaration of a sentencing courts ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). A court would then always have the rights, sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to impose less than the The Effect Media on University Essay, mandatory minimum sentence on the ground that the mandatory sentence is disproportionate as applied in rights, a particular case. We do not read article I, section 9 to render the Legislatures authority to enact mandatory sentences a nullity.10.

? 21 Because we hold that the clause, all penalties and Left punishments shall be proportioned to the offense, means what its plain language says, and does not require consideration of the individual circumstances of rights, each offender, the The Older, sentence imposed on Gilman was illegal unless it. was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court always has the power and duty to uphold the State and 8th amendment rights Federal Constitutions, and will protect the individual from an unconstitutional invasion of his rights by the legislative . . . branch of The Older Americans Act in, government. Dept of 8th amendment, Corr. In The. 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 rights, sovereign people in the area of crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of legislative concern. It is not the office of the judiciary to interpose constitutional limitations where none need be found. Of course a mandatory sentence of Act in Essay, great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to be avoided might then be a cruelty of constitutional dimensions. It seems to 8th amendment rights us that the interest of the legislature is paramount in the field of penology and in the sun film the public safety. The legislature defines the 8th amendment rights, contours of the crime itself, and sets the limits for punishment. . . . The underlying structure of the penal system is statutory; the coherence of the peter dicken, system is to be found in legislative direction. State v. King, 330 A.2d 124, 127-28 (Me.

1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (The power of punishment is vested in 8th amendment rights, the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment. (quotation marks omitted)). ? 23 We have described the the persistence of memory, test for determining when a sentence is cruel and unusual as whether it is greatly disproportionate. . . and whether it offends prevailing notions of decency, Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it shocks the conscience of the public, or our own respective or collective sense of fairness, State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is 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 rights thus expresses the Left, peoples will, only the most extreme punishment decided upon by rights 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 dali of memory 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 rights, a Class C crime, punishable by a maximum of five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of two years, or forty percent of the maximum.

29-A M.R.S. ? 2557-A(2XD). It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to of Social Media Essay endanger others by operating a motor vehicle while impaired, from continuing to drive under any circumstances. 8th Amendment Rights. A mandated sentence for that conduct on the lower end of the zero-to-five-years scale is 2013, not the rare, extreme, or shocking case, and does not violate the proportionality requirement of rights, 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 operating after revocation because of his prior OUI convictions. He acknowledges that in peter dicken, order to reach the result he seeks, we would be required to overrule our decision in State v. 8th Amendment Rights. Chapin, where the same argument was advanced and rejected. 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was certainly strong enough to justify the imposition of a minimum mandatory sentence for a raisin habitual offenders with OUI convictions who continue to drive. Id.

Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to an enhanced sentence for operating after revocation remains intact. ? 27 Gilman next contends, on the authority of State v. Stade, 683 A.2d 164, that because his license had been revoked, the State was required to 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 defendants due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendants detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the 8th amendment rights, law. The Legislature changed the statute, the Governor signed it into law, and Gilman is presumed to know what the law is. See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. Peter Dicken. 909 (1911). Contrary to Gilmans 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. 8th Amendment Rights. Moreover, the law in effect at poetry emerson, the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for the operation of any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. ? 2557(2)(B)(2) (2005).12.

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 8th amendment, State stating that his privilege to The Effect of Social on University Essay operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the 8th amendment rights, preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because the certification served only to dali confirm the 8th amendment, authenticity of the poetry emerson, underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information. 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on 8th amendment rights, Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Courts decision in peter dicken, Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the rights, admission of a chemists certificate stating that an analyzed substance was cocaine violated the Sixth Amendment, because although documents kept in the regular course of business may ordinarily be admitted at dali the persistence of memory, trial despite their hearsay status. . . that is not the case if the regularly conducted business activity is the 8th amendment, production of evidence for use at trial. Id. at 2538, 174 L.Ed.2d at The Effect on University Image Management, 328 (citation omitted).

? 31 We recently analyzed the impact of Melendez-Diaz on Tayman and concluded that Tayman remains good law. 8th Amendment. State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilmans argument fails. Judgment of conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided:

D. A person is guilty of a Class C crime if the person commits the of Social Image Management Essay, 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 8th amendment rights a Class C crime under this paragraph is The Older Americans Act in 2013, $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court. 29-A M.R.S. ? 2557-A(2)(D) (2008). The statute has since been amended, though not in 8th amendment rights, any way that affects this case. P.L.

2009, ch. 54, ? 5 (effective April 22, 2009) (codified at The Effect of Social on University Image Essay, 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in 8th amendment rights, the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. A Raisin In The Sun Film. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases).

3 The statute has since been amended, though not in 8th amendment, any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)). 4 The Rule provides: On motion of the . . . attorney for the state . Poetry Emerson. . . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in rights, an illegal manner. M.R.Crim. P. 35(a).

5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in 2013, context, that is, it must be proportionate not only to his specific crime, but also to rights the sentences imposed by poetry emerson the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . The Eighth Amendments protection . . Rights. . flows from the in the, basic precept of justice that punishment for 8th amendment a crime should be graduated and proportioned to The Older 2013 Essay 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 rights the offense and whether it offends prevailing notions of decency.); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (A mandatory sentence is not cruel and unusual punishment unless the Media on University Management Essay, sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (The interpretation of `cruel or unusual punishment also is informed by the requirement of proportionality.). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for 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 rights OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Frye, 390 A.2d 520, 521 (Me. 1978) (holding mandatory four-year sentence for robbery with a firearm not disproportionate to the offense); State v. 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 No Child Left Essay sale of amphetamine not disproportionate and thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me.

1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in particular case irrelevant); c.f. Rights. 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. The Older Americans 2013. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Michigan, 501 U.S. 957, 961, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (holding mandatory sentence of life without parole for possessing 672 grams of cocaine not cruel and unusual). 9 In felony cases where the applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the crime as committed, then considers aggravating and/or mitigating factors to arrive at a maximum sentence that may be higher or lower than the basic sentence, and finally determines whether any of the 8th amendment, maximum sentence should be suspended in arriving at a final sentence.

17-A M.R.S. ? 1252-C. 10 For defendants such as Gilman who assert that a mandatory sentence is too harsh as applied, the Maine Constitution gives the Governor the equitable power to grant reprieves, commutations and poetry emerson pardons in 8th amendment rights, individual cases. Me. Const. art. V, pt. 1, ? 11. 11 Discussing what would qualify as disproportionate under the Eighth Amendment, the peter dicken, Supreme Court used the rights, hypothetical example of a legislature making overtime parking a felony punishable by life imprisonment. Ewing, 538 U.S. at 21, 123 S.Ct. 1179 (plurality opinion) (quotation marks omitted).

12 Title 29-A M.R.S. ? 2557 was repealed and replaced by P.L. 2005, ch. 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005. Gautiers conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of Act in 2013, America, Eddie GAUTIER, Defendant.

Criminal No. 8th Amendment. 06cr0036-NG. United States District Court, D. Massachusetts. December 23, 2008. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. COPYRIGHT MATERIAL OMITTED. Oscar Cruz, Jr., Timothy G. Watkins, Federal Defenders Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Peter Dicken. Weinreb, United States Attorneys Office, John A. Wortmann, Jr., United States Attorneys Office, Boston, MA, for 8th amendment United States of a raisin in the, America. GERTNER, District Judge: TABLE OF CONTENTS.

A. Whether Gautiers 2001 Crime of 8th amendment, Resisting Arrest under Mass. Gen. 1. Whether the Crime Defined by Prong (2) of 32B Is a Violent. 2. Whether the The Older 2013, Crime Defined by Prong (2) of rights, 32B Is a Violent. B. Whether the 1998 Juvenile Offenses Were Committed on Different. 2. Whether the Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of defendant Eddie Gautier (Gautier) one night in Roxbury.

The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by state officers, possession of an inoperable gun did not constitute a crime under state law. The federal government took up the case, charging Gautier with being a felon in possession of a firearm, pursuant to 18 U.S.C. 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and Left Behind a resisting arrest charge from 2001, when he was 20. (He is 8th amendment, presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for Gautier. Dali The Persistence Of Memory. It contended that these convictions compelled the rights, application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (ACCA). See 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions). I disagree. In passing the ACCA, Congress focused its efforts on Left Behind Essay, career offenders those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to rights persons. Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautiers criminal history consists of peter dicken, six episodes over 8th amendment, ten years; two occurred when he was 16 and two others were marijuana offenses.2 The.

predicate offenses for 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 poetry emerson, 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 8th amendment rights, ACCA. Second, and in the alternative, court records were ambiguous on the question of Behind Research Essay, whether his 1998 offenses were committed on occasions different from one another as the statute requires. 8th Amendment. As a result, Gautier lacks the requisite three predicate offenses and the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months incarceration, in effect the dali, Guideline felon in possession sentence, and three years supervised release, with a number of special requirements. This memorandum reflects the factual and rights legal bases for that sentence. On the night of The Older Americans Act in 2013 Essay, January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the rights, group.

One of Gautiers friends, Salome Cabrera, peered into poetry emerson, the vehicle and 8th amendment made movements toward his waistband. The Effect Image. The officers exited the car, badges displayed, and 8th amendment rights walked to Cabrera. Cabrera then allegedly shouted get the burner (slang for gun), a comment Gautier claimed he did not hear, and the police responded by drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in of Social on University Essay, Gautiers jacket pocket. Rights. 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 a raisin in the, one count of felon in possession of 8th amendment, a firearm and one count of felon in possession of ammunition, both pursuant to 18 U.S.C. 922(g)(1). Subsequent to his arrest, he agreed to speak to federal agents and police investigators, admitted to No Child Behind Research possessing the gun, and rights divulged where it had come from.

Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to the charge, but was advised against it because of the possibility of an peter dicken, 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 8th amendment rights 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 The Effect Image a group of younger, intoxicated friends in a dangerous area of rights, Boston.

The jury rejected his claim, convicting him of both counts on July 18, 2008. Left Behind Essay. 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 defendants objections to the presentence report. On that date, I also raised sua sponte the issue of rights, whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. At the final sentencing hearing on December 15, 2008, after reviewing the parties submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well.

Gautiers conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. 922(g)(1) subjects him to the enhancement provision of the Armed Career Criminal Act. That statute provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by poetry emerson any court referred to in section 922(g)(1) of 8th amendment, this title for a violent felony or a serious drug offense, or both, committed on Media on University Essay, occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years. 18 U.S.C. 924(e)(1). Gautiers sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the rights, sentencing enhancement: First, Gautiers conviction for resisting arrest may not be a violent felony under the ACCA.

Second, the government may have difficulty establishing, on the basis of The Older Americans 2013 Essay, source material deemed appropriate by the Supreme Court, that the 1998 offenses were committed on occasions different from one another. A. 8th Amendment. Whether Gautiers 2001 Crime of Resisting Arrest under Mass. A Raisin In The Sun Film. Gen. Laws Ch. 268, 32B Is a Violent Felony. The ACCA defines violent felony as any crime punishable for a term exceeding one year that (i) has as an element the use, attempted use, or threatened use of rights, 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 apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and not to the facts underlying the conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143.

Put simply, the peter dicken, issue is what the rights, defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for Left Behind Research 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 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 8th amendment ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in Shepard v. United States, 544 U.S. Peter Dicken. 13, 125 S.Ct. Rights. 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 600-02, 110 S.Ct.

2143; Damon, 127 F.3d at 142-46.) If the dali of memory, defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the verdict. When a defendants conviction resulted from a guilty plea rather than trial, those sources include the charging document, the 8th amendment, plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at peter dicken, sentencing, and any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. 8th Amendment. Finally, if the relevant facts contained in Left Research, the PSR are uncontested, the court may consider these as further admissions by the defendant. Rights. See Dueno, 171 F.3d at 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of peter dicken, Gautiers 2002 plea to the charge establishes that the plea was to the violent version of the felony. 8th Amendment. Under the Massachusetts statute, a person is of Social Media on University Image Management Essay, guilty of the offense if he knowingly prevents or attempts to prevent an officer from effecting an rights, arrest by The Effect of Social Media Image Management (1) using or threatening to use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another. Mass. Gen. Laws ch. 268, 32B(a).

The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it has as an element the use, attempted use, or threatened use of physical force against the person of another. 18 U.S.C. 924(e)(2)(B)(i); see Govt Sent. 8th Amendment Rights. Mem. 3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautiers colloquy, no plea agreement, and no other record indicating which type of The Effect Media on University Image Essay, resisting arrest Gautier admitted.

While the PSR reviewed the police report of the offense, Gautier did not adopt the facts as true. Rather, he interposed a Shepard challenge to rights 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 peter dicken, offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of rights, resisting arrest and as the. statute is Media on University Management Essay, structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA. 8th Amendment Rights. It cannot. 1. Whether the Crime Defined by Prong (2) of dali the persistence of memory, 32B Is a Violent Felony Under 18 U.S.C. 8th Amendment Rights. 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. Peter Dicken. Laws. Rights. 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 in the, fact that the Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)s specification of resistance by other means, suggests that Prong (2) does not involve such an 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 Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the 8th amendment, second definition provided by the ACCA. Since resisting arrest is obviously not one of the sun film, enumerated offensesburglary, arson, extortion, or a crime that involves the 8th amendment rights, use of in the, explosivesthe inquiry focuses on what has been called the residual clause of the ACCA statute. 8th Amendment Rights. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is whether resisting arrest using any other means which creates a substantial risk of causing bodily injury to such police officer or another, in the language of the Massachusetts statute, Mass.

Gen. Laws. Peter Dicken. ch. Rights. 268, 32B, involves conduct that presents a serious potential risk of physical injury to another, in the language of the The Older Americans 2013, ACCA, 18 U.S.C. 8th Amendment Rights. 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 poetry emerson the ACCA under the residual clause. In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for determining whether a conviction is a violent felony under the residual provision of rights, 924(e)(2)(B)(ii). Where the offense in question is not one of those enumerated in the statute, a court must determine not only (1) whether that offense involves conduct that presents a serious risk of physical injury to another, but also (2) whether the sun film, crime is roughly similar, in 8th amendment, kind as well as in degree of risk posed, to the enumerated offenses.

Id. at 1585. The latter step is poetry emerson, critical here. It requires a court to decide whether the offense in question typically involves purposeful, violent, and aggressive behaviorthe defining feature of the 8th amendment rights, enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to peter dicken 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. 8th Amendment Rights. 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 a raisin in the sun film, 1986 Congress rejected a broad proposal that would have covered every [such] offense. Id. at 1586. Finally, the Court noted that this interpretation served the ACCAs purpose of punish[ing] only a particular subset of offender, namely career criminals. Id. at 1588: The listed crimes all typically involve purposeful, violent, and rights aggressive conduct. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to Americans Act in Essay harm a victim. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels 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. 8th Amendment Rights. Even so, it held under the 2013, second step of the analysis that a conviction for driving under the influence (DUI) falls outside the scope of the residual clause because [i]t is simply too unlike the provisions listed examples for us to 8th amendment believe that Congress intended the provision to cover it. Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze every conceivable factual offense covered by a statute, but rather should consider the ordinary case of the poetry emerson, offense. James, 127 S.Ct. at 1597.

In the words of the First Circuit, I must evaluate the 8th amendment rights, degree of risk posed by of Social Image Essay the mine-run of conduct that falls within the 8th amendment, heartland of the poetry emerson, 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 rights, a firearm is not a violent felony under the ACCA because risk of peter dicken, physical harm does not often accompany[] the conduct that normally constitutes the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district courts understanding that it had to consider whats the typical, usual type of conduct constituting statutory rape); Damon, 127 F.3d at rights, 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 Behind Research, 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 concerned with the usual type of conduct that the statute purports to proscribe.). To determine the 8th amendment, 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. In Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendants stiffening his arms and pulling one away for a second to dali the persistence of memory avoid being handcuffed constituted resisting arrest by a means which creates a substantial risk of causing bodily injury to the officers involved. Id. at 144-45, 741 N.E.2d 25.

In Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. 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. 8th Amendment Rights. 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 in the, actual or threatened use of force, the 8th amendment rights, mine-run of conduct criminalized by Prong (2) involves a lesser version of active, physical refusal to submit to in the the authority of the arresting officers: paradigmatically, the stiffening of ones arms to resist handcuffing.

Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the Prong (2) definition of resisting arrest presents a serious potential risk of physical injury to another. Stiffening ones arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to rights satisfy this part of the test. Peter Dicken. See United States v. Urbano, No. 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. May 6, 2008) (holding on these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a violent felony for ACCA purposes) (While an individual can, and often does, cause serious personal injury or death while attempting to flee from the rights, police, the statute also charges behavior which would arguably not cause serious personal injury.). In Grandison, however, the Americans Essay, Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling ones arm free, is [t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at rights, the moment [the defendant] freed his arm. 433 Mass. at 145, 741 N.E.2d 25.

Even assuming arguendo that the conduct typically prosecuted under Prong (2) of the resisting arrest statute presents a serious potential risk of injury to another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not roughly similar, in kind as well as in degree of risk posed, to the enumerated offenses. Begay, 128 S.Ct. at 1585. First, looking to poetry emerson the degree of rights, risk: Even if the Grandison court is correct that stiffening ones arms and Left pulling away present a serious risk of harm to another, the 8th amendment rights, degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of violence due to the possibility of a face-to-face confrontation between the burglar and a third party who comes to investigate. James, 127 S.Ct. at in the, 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the powder keg rationale). 8th Amendment Rights. 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 Americans, stiffening of ones arms than that it will result from rights a burglary, the setting of a structure on poetry emerson, fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. Second, looking to the in kind test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to determine whether the offense involves purposeful, violent, and aggressive behavior. In Begay, the 8th amendment, Court held that drunk driving does not fulfill the test because the offender does not possess the poetry emerson, purpose or intentional aggression that characterizes the enumerated offenses. 128 S.Ct. at rights, 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 Americans, United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall neither within the safe harbor of 8th amendment, offenses with limited scienter requirements and Americans 2013 Essay uncertain consequences (like DUI ), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant. Id. at 7 (citation omitted). Prong (2) resistance is such a crime. The First Circuit recently explained that all three types of conducti.e., purposeful, violent and aggressiveare necessary for a predicate crime to qualify as a `violent felony under ACCA. United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). 8th Amendment. The court also provided more precise meanings for The Older 2013 Essay those characteristics. 8th Amendment Rights. It explained: The Supreme Court use[d] purposeful interchangeably with intentional. [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is peter dicken, common sense that a DUI is not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in 8th amendment rights, other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as tending toward or exhibiting aggression, which in turn is defined as a forceful action or procedure (as an unprovoked attack) esp. when intended to dali dominate or master. Merriam-Websters Collegiate Dictionary 24 (11th ed. 2003). Violence may be defined as marked by extreme force or sudden intense activity.

Id. at 58. Rights. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by of memory negligent operation of a motor vehicle was not a crime of violence under the career offender sentencing guidelines.10 Id. at 59. While the offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to be similar in kind to the enumerated offenses. Id. A similar conclusion obtains here. 8th Amendment Rights. To be sure, the Prong (2) form of resisting arrest is purposeful in The Effect of Social on University Management, that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to expose others to risk of injury). It is differently purposeful, however, from the interstate transport of a minor for prostitution, which the First Circuit held in Williams constituted a crime of violence under the career offender provision of the sentencing guidelines. 529 F.3d at 8th amendment rights, 7-8. A defendant who prostitutes minors is aware of the The Effect Media Management Essay, risks that the rights, prostituted minor will face and the risk of harm is easily foreseen by the defendant, id. at poetry emerson, 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 `most damaging crimes to 8th amendment society because it involves invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and valued possessions (quoting H.R.Rep. Peter Dicken. No. 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the 8th amendment rights, First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by the courts definition of violence. See Herrick, 545 F.3d at 60.

Nor does it resemble those offenses previously held by the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the residual clause. See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. The Effect Media Management Essay. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. 8th Amendment Rights. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. Poetry Emerson. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from a person); United States v. Fiore, 983 F.2d 1 (1st Cir.1992) (breaking and entering a commercial or public building); United States v. Patterson, 882 F.2d 595 (1st Cir.1989) (unauthorized entry of the premises of another); United States v. Cadieux, 350 F.Supp.2d 275 (D.Me.2004) (indecent assault and battery on a child under 14); United States v. Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and 8th amendment battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. No Child Essay. 30, 2004) (breaking and entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and 8th amendment rights battery on a person over 14 years old). Peter Dicken. And those cases predated Begay, when the 8th amendment, standard for finding an offense to be a violent felony was easier to satisfy. In light of the difference in aggression and violence between resisting arrest and the offenses previously held to sun film be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the `way or manner in which it produces risk of injury. Begay, 128 S.Ct. at 1586. To be sure, some courtsincluding within this districthave found that resisting arrest is an 8th amendment, ACCA predicate, but all of peter dicken, these cases predate Begay.11 Begay. charted a new course in interpreting the rights, critical violent felony definition of the Armed Career Criminal Act. Williams, 529 F.3d at 6. Significantly, in poetry emerson, a recent post-Begay case in this court, Judge Zobel rejected the 8th amendment rights, governments contention that a prior conviction under the Massachusetts resisting arrest statute constituted a crime of violence under the a raisin in the sun film, career offender guidelines. United States v. Kristopher Gray, No.

07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. 24, 2008) (sentencing defendant without written opinion to rights twenty-four months imprisonment for conviction under 18 U.S.C. 922(g)). A Raisin. In another post-Begay case on resisting arrest, the U.S. District Court for the District of Kansas held that the crime of fleeing and eluding an officer is not a crime of violence because the statute also charges behavior which would arguably not cause serious personal injury and 8th amendment because resisting arrest is not similar to the listed crimes set forth in dali the persistence of memory, 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the existence of 8th amendment, a 2005 precedent concluding that the peter dicken, resisting arrest was a crime of 8th amendment, violence. No Child Left Behind Research Essay. The court explained its about-face as required by 8th amendment Begay. Id. at *2.

In light of the Supreme Courts pronouncement in No Child Behind Research Essay, 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 8th amendment, ones arms, not the application of force to another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in on University Management, kind. The state court criminal complaint charges Gautier with the 8th amendment rights, full definition of resisting arrest. Because the government cannot establish that he pleaded to dali the persistence 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 predicatestoo few to 8th amendment rights trigger the fifteen-year mandatory minimum.

B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. 1. On University Management Essay. Legal Standard. That Gautiers resisting arrest conviction is not a violent felony is enough to preclude the application of the ACCA enhancement. In the alternative, I find the enhancement is 8th amendment, also flawed for a second reason: his 1998 juvenile offenses were not committed on poetry emerson, 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 8th amendment rights, that examination include the identity of the victim; the type of crime; the time interval between the crimes; the location of the crimes; the peter dicken, continuity vel non of the defendants conduct; and/or the apparent motive for the crimes. Id. As one would expect from Congress use of the word occasion, the 8th amendment rights, First Circuit has focused on the element of time. Poetry Emerson. The Stearns court summarized that the statute distinguishes between, on the one hand, a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather, viz., a period (however brief) which is devoid of 8th amendment rights, criminal activity and in which he may contemplate whether or not to poetry emerson 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 consecutive days had committed offenses on different occasions); see also United States v. Ramirez, No.

CR-05-71-B-W, 2007 WL 4571143, at *6 (D.Me. Dec. 21, 2007) (two robberies committed over five weeks apart against different victims in different locations occurred on 8th amendment rights, different occasions); United States v. Sun Film. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and rights breaking and entering occurred on different occasions because they were committed on poetry emerson, consecutive days); United States v. 8th Amendment Rights. Mollo, No. 97-1922, 1997 WL 781582, at *1 (1st Cir. Dec. 17, 1997) (per curiam) (defendant who robbed liquor store in Greenwich and thirty minutes later robbed variety store in Stamford had committed offenses on different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and peter dicken 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 rights the purposes of the ACCA, even though defendant received concurrent sentences).

2. Whether the Inquiry Is Limited to Shepard-approved Source Material. Again, in order to apply the above legal standard to the facts of Gautiers prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the Supreme Court has directed courts to apply a categorical approach to determining whether a prior conviction qualifies as a violent felony and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. Act In 2013 Essay. 575, 588, 110 S.Ct. 8th Amendment. 2143, 109 L.Ed.2d 607 (1990). In the case of a guilty plea, the Court has limited district courts to the terms of the No Child Left Research, charging document, the rights, terms of a plea agreement or transcript of poetry emerson, colloquy between judge and 8th amendment rights defendant in dali of memory, which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information. Shepard, 544 U.S. at 26, 125 S.Ct. 1254. The issue I confront here is 8th amendment, 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 this issue.

In a pre-Shepard case, the court express[ed] no opinion on the lower courts citation of Taylor for the proposition that district courts normally should not look beyond the indictment when determining whether a prior conviction is the type countable under the ACCA. Stearns, 387 F.3d at 107. In that case, the peter dicken, defendant sought an evidentiary hearing to 8th amendment develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an No Child Left Behind Research Essay, involved inquiry and denied his motion, but because the defendant accepted the judges ruling without objection, the First Circuit held he could not raise the issue on appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the First Circuit again declined to resolve the issue. The defendant argued it was error for the district court to 8th amendment rights use facts gleaned from police reports and The Older Essay 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 address his argument, finding that even counting the contested offenses as one the defendant had enough predicates to rights trigger the ACCA. Id. at 40. At least three circuit courts have held that the source restriction applies to The Effect on University Management Essay the occasions inquiry. 8th Amendment Rights. The Fourth Circuit held in Media Management Essay, United States v. Rights. Thompson, 421 F.3d 278 (4th Cir.2005), that the ACCAs use of the term `occasion requires recourse only to data normally found in conclusive judicial records, such as the of Social Media on University Essay, date and rights location of an offense, upon which Taylor and in the sun film Shepard say we may rely. Id. at 286 (upholding trial judges 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 rights 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 Americans Act in, court could not establish on 8th amendment rights, the basis of Left Behind Essay, Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendants sentence where the sequence of 8th amendment rights, 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 poetry emerson, sentencing court limited itself to Shepard sources in determining whether the defendants prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005). Several district courts have come to the same conclusion. See, e.g., United States v. Carr, No. 8th Amendment Rights. 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 The Older Americans, a circuit that disavows this application of the 8th amendment, 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 poetry emerson, 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 rights, source restriction applies only to the violent felony inquiry and not to the occasions inquiry. In The Sun Film. The Sixth Circuit has been most emphatic: All of 8th amendment rights, our opinions on the persistence, this issue have involved consideration of the specific facts underlying the prior convictions.

Indeed, we cannot imagine how such a determination could be made without reference to 8th amendment rights the underlying facts of the predicate offenses. United States v. Peter Dicken. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by Taylor, reasoning that these only rights, rarely provide the details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding [a]s a practical matter that Taylor does not restrict the occasions inquiry), and No Child Left Research Essay the Eleventh Circuit has held on the same grounds that the question is 8th amendment, 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 Left Behind, Supreme Court reaffirmed its commitment to the categorical approach in Shepard. But see United States v. Hendrix, 509 F.3d 362, 375-76 (7th Cir. 2007) (affirming the district courts use of the 8th amendment rights, PSR to determine that defendant had three predicates from different occasions for of memory the ACCA). I find that the former approach is more faithful to the Supreme Courts rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA.

As I explained in my remand opinion in Shepard, the Supreme Courts categorical approach caution[s] the judge against 8th amendment becoming embroiled in The Effect of Social on University Image, a `daunting factual inquiry about what had actually happened at the time of the 8th amendment, state offense. United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the defendant did not go to trial is what did the defendant plead to in the state court? Id. at peter dicken, 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 Supreme Courts caution in rights, this area and No Child Left 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 rights any explicit factual finding by the trial judge to which the defendant assented in determining whether the defendants prior offenses were committed on occasions different from 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 1998 offenses occurred on different occasions are the poetry emerson, state court indictments and Gautiers plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases.

And no additional underlying facts were incorporated into the PSR and adopted by the defendant. PSR 35-36 (repeating the details provided in 8th amendment rights, the indictments and specifically stating that police reports were not received). While the plea tenders merely contain the The Effect Media on University, defendants and 8th amendment prosecutors 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 assault and the persistence battery against rights a victim named F.L. In Suffolk Superior Court case no. 98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against dali of memory 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 8th amendment that on the same day, he tried try to steal E.M.s car, robbed him of $25.00, and of memory confined or imprisoned him against rights his will. Clearly, the defendant committed these crimes against different individuals. But the type of Media on University Management Essay, crime at rights, 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 dali of memory, crimes, the time interval between the offenses, or the continuity of the rights, conduct. It is poetry emerson, therefore not possible to discern the point at which the first offense is completed and the second offense begins. United States v. 8th Amendment. Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the mere fact that the offenses against F.L. and those against E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. Appx. 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. Peter Dicken. 1990).

As such, courts have found that the 8th amendment rights, existence of separate indictments is poetry emerson, not dispositive evidence that the crimes alleged therein were committed on 8th amendment, 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. Media On University Essay. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 8th Amendment Rights. 2005) (holding that Shepards source restriction governs determinations of whether prior crimes were related under the poetry emerson, Sentencing Guidelines criminal history provisions, then ruling that the existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to the instant case.

Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth may charge two or more related offenses in rights, the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautiers 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced a period devoid of criminal activity and in which he may contemplate whether or not to commit the second crime, Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the armed robberies on occasions different from one another. By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. This result provides a secondary reason the mandatory minimum does not apply to Gautier.15. IV.

THE SENTENCE. A. The Guidelines Computation. I accept the presentence report computation of the Guidelines to this extent: the base offense level is 24 under U.S.S.G. 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. Poetry Emerson. I consider this issue in connection with the 3553(a) factors (see below). While the government argues that the defendant committed perjury during his trial testimony, I do not agree and will not enhance under 3C1.1. I also agree that Gautiers criminal history is category IV under 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months. B. 18 U.S.C. 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to 8th amendment rights be imminent harm to others, and because he has turned his life around while in custody.

I can find no clear rationale for a variance on No Child Behind Essay, these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the purposes of 3553(a) for the following reasons: 1. Nature and Circumstances of the Offense. Gautier claims he took the gun from his friends because they were drunk and behaving recklessly. 8th Amendment. 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 poetry emerson, a position where the offense was even possible: in 8th amendment rights, the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and poetry emerson momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety. Gautier cooperated with the 8th amendment rights, authorities from the outset. He told them what he knew, offered to of Social on University Image Management Essay plead guilty, but was advised otherwise by his counsel. He went to trial on rights, the advice of his attorney to preserve his challenge to the persistence the ACCA.16 He plainly took responsibility for what he had done, though not in 8th amendment rights, the narrow way in which this concept has been interpreted under the No Child Behind Essay, Sentencing Guidelines. I found Gautier contrite at 8th amendment, his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life.

Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and peter dicken the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to Boston after a fire damaged their home. 8th Amendment. This relationship did not last, according to Gautiers mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of his discipline problems. He stayed there until age 16 when he returned to of memory Massachusetts. DYS records reveal that at age 16 Gautier witnessed a good friend being stabbed in the chest and cradled his friend as he died. After this incident another good friend. died of 8th amendment, complications relating to pneumonia.

Soon thereafter, he was committed to DYS for Americans Act in 2013 Essay a number of offenses. He was released on parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon 8th amendment, 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 dali the persistence, ministry work, assisting fellow inmates and 8th amendment studying with the prison chaplain. Gautier spoke movingly of this work. Sun Film. He indicated to Probation that he hopes to rights attend a college where he can continue these studies. Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to Left give his life structure, but needs more.

I have required Probation to devise a recommended plan for him, both as a recommendation for the Bureau of Prisons during the period of his incarceration and as a template for his supervised release afterwards. Studies suggest the significance on recidivism of a consistent plan, beginning in prison and extending into 8th amendment, reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. 258 (2000). In addition to of memory that plan, as a condition of supervised release, Gautier is to speak at high schools or to other young men identified by Probation as at risk. I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in rights, possession, without the ACCA enhancement, and pled to peter dicken that offense as he had wanted to do.17 That sentence combines the Guidelines values with those of 3553(a).

1. The ballistics report observed that a portion of the trigger guard is broken off, the 8th amendment, ejector rod collar is out of place, the ejector rod spring is defective, the ejector rod will not secure the cylinder in the closed position, the The Effect of Social Media on University Image Management, cylinder hand is not making contact with the cylinder, and neither the 8th amendment rights, trigger nor the The Effect Media Image Essay, hammer can be drawn back to the firing position. Rights. There is rust on the cylinder, the ejector, the crane, and the trigger. No Child Left Behind Essay. This weapon cannot be fired in its present condition and in rights, my opinion it would require extensive work and new parts to return this weapon to The Older Americans Act in 2013 Essay a state in which it can be discharged. Boston Police Ballistic Unit Case Notes, Def.s Sent. Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in rights, the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and sun film possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (PSR) 35-40. 3. Gautier made incriminating statements during the rights, booking procedure, including You got me with the burner, Im gonna take a plea and do a year and Thats a separate charge? Of course its gonna have bullets in it, its a gun. He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. The Effect Media Essay. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were burglaries under the ACCA.

The First Circuit reversed, holding that police reports could be considered if they constituted sufficiently reliable evidence of the 8th amendment rights, government and the defendants shared belief that the peter dicken, defendant was pleading guilty to a generically violent crime. United States v. Shepard, 231 F.3d 56, 70 (1st Cir.2000). I then concluded that the central question was, what did the defendant plead to 8th amendment rights in state court, and that the police reports did not provide reliable evidence on that central question. United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). Peter Dicken. The First Circuit again reversed, holding that the police reports could be considered and instructing me to apply to ACCA mandatory minimum.

United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of 8th amendment, 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. Peter Dicken. 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word some for the word any in 8th amendment, any other means. This discrepancy is of no consequence in in the sun film, this case. 6. The court noted that the conduct could also constitute resisting arrest under Prong (1) of the statutory definition.

Id. at 8th amendment, 719. 7. The government describes these as marginal or unusual examples of the crime, Govt Sent. Mem. 3, but it offers no cases to No Child Research suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the Supreme Court heard argument in a case presenting the question of whether failure to report to prison is a violent felony under the ACCA. Chambers v. United States, No. 06-11206, 2008 WL 4892841 (U.S. Nov. 10, 2008). This case presents the Court with an opportunity to reevaluate the powder keg theory, under which most circuits have found that such convictions are violent felonies because they create a risk of 8th amendment rights, 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 dali the persistence consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences. United States v. 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. 8th Amendment Rights. The First Circuit has repeatedly held that [g]iven the similarity between the ACCAs definition of No Child Essay, `violent felony and 8th amendment the definition of `crime of Americans Act in, violence contained in the pertinent guideline provision, authority interpreting one phrase is generally persuasive when interpreting the other. Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. 8th Amendment. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of of memory, whether a conviction for resisting arrest was a prerequisite crime of violence under the 8th amendment rights, career offender guideline, U.S.S.G. 4B1.1. He confessed hesitation based on the uncertain impact of the Supreme Courts recent decision in Shepard and the fact that the No Child Left Research Essay, resisting arrest statute allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence. Id. at 310. 8th Amendment. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendants motion to exclude his resisting arrest conviction as a predicate offense for of memory career offender status.

In that case, however, the rights, defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for poetry emerson it. Rights. (Almenas is now on appeal at the First Circuit. See Almenas v. The Older Americans. United States, No. 06-2513. Because the 8th amendment rights, parties in that case have urged the court to remand the case on alternative groundsnamely, because the district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. ___, 128 S.Ct. Poetry Emerson. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)I resolve the issue here.) In United States v. Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of 924(e)(1)(B)(ii) because [t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the rights, arrest, creating the potential for serious physically injury to the officer and the persistence of memory others. Id. at 455. 8th Amendment. Because the court made no attempt to identify the type of conduct that usually underlies the conviction, I do not know how the No Child Research, statute at rights, issue there compares to the one at issue here. The Older Americans Act In 2013 Essay. Finally, the Eighth Circuit held in United States v. 8th Amendment Rights. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a crime of violence under U.S.S.G. 4B1.1 because any resistance other than simply going limp increases the possibility of a violent incident. See id. at in the, 1055. 12.

The government urged me to rights consider this alternative holding, even though it had not fully briefed it, in on University Image Management, order to avoid addressing this issue on a remand, in the event of resentencing. 13. This view accords with the rights, guidance provided to trial judges in other circuits. Poetry Emerson. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because it is possible to discern the point at 8th amendment, which the first offense is completed and the second offense begins); United States v. Peter Dicken. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on same night in 8th amendment, separate doctors offices 200 yards apart occurred on Essay, 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 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 rights 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 poetry emerson 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 8th amendment, State, and Americans Act in they guarantee a jurys finding of rights, any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, the disputed fact here is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and The Effect of Social Media Essay Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the 8th amendment, dispute. Id.

15. Poetry Emerson. In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of 8th amendment, his January 8, 1998 criminal episodes does not qualify as a violent felony. The argument proceeds in several steps. Peter Dicken. First, an offense is not a violent felony unless it is punishable by imprisonment for a term exceeding one year, 18 U.S.C. 924(e)(2)(B), and 8th amendment a crime is The Effect on University Essay, not punishable by imprisonment for 8th amendment a term exceeding one year if it has been set aside under state law, 921(a)(20). In Massachusetts, a youthful offenders conviction is Act in 2013, set aside when he is discharged from Department of 8th amendment, Youth Services (DYS) custody. See Mass. Gen. Laws ch. A Raisin Sun Film. 120, 21. 8th Amendment Rights. Gautier notes that for the persistence of memory one of the two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Rights. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA.

The ACCA, however, is No Child Essay, 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). 8th Amendment. Where a defendants conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this unless clause is read to No Child Left Essay 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, Gautiers discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch. Rights. 120 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to carry a firearm, id. at Left Behind Research, ch.

140 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a conditional plea, pleading guilty while preserving his legal arguments. For all intents and purposes, that is what his trial accomplished. 8th Amendment Rights. Gautier admitted he was a felon and peter dicken admitted that he possessed the gun. He attempted to explain that possession to the jury. Given the enormity of the rights, ACCA enhancement, I credit his counsels advice and poetry emerson the motivation for the trying the case.

17. Base offense level 24, minus 3 for acceptance of responsibility, and rights criminal history category IV.

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Les Rois Maudits, tome 1 : Le roi de fer. Le Roi de fer est un roman historique écrit par Maurice Druon et publié en 1955. Il est le premier tome de la série des Rois maudits. Au début du xive siècle, le roi Philippe le Bel, réputé glacial et majestueux, règne d’une main de fer sur la France. Rights! Sous son règne, la France est grande et les Français malheureux . Peter Dicken! Philippe le Bel a trois fils et une fille : Louis, dit Louis le Hutin, héritier du trône ; le comte Philippe de Poitiers, homme sage et pondéré ; Charles le Bel, surnommé l#039;oison en raison de sa faible intelligence ; Isabelle de France, mariée à Édouard II, roi d’Angleterre. Tous maudits, jusqu#039;à la treizième génération ! : telle est la funeste malédiction que le chef des templiers, depuis les flammes du bûcher, lance au visage de Philippe le Bel, roi de France. 8th Amendment! Nous sommes en 1314 et la prophétie va se réaliser: pendant plus d#039;un demi-siècle, les rois se succèdent sur le trône de France, mais n#039;y restent jamais bien longtemps. Sun Film! D#039;intrigues de palais en morts subites, de révolutions dynastiques en guerres meurtrières, c#039;est la valse des rois maudits. 8th Amendment! L#039;avenir de la France se joue pendant ces quelques années noires, période trouble de l#039;Histoire. Americans Act In 2013! Une époque extraordinaire, jamais ennuyeuse, comme romanesque. 8th Amendment! L#039;auteur l#039;a bien compris, lui qui conte les histoires secrètes du royaume et des hommes, de leurs passions comme de leurs faiblesses qui bien souvent bouleversèrent le sort de la France.

Classement en biblio - 546 lecteurs. Les Rois Maudits, tome 1 : Le roi de fer. De ce visage en feu, la voix effrayante proféra : Pape Clément. Sun Film! Chevalier Guillaume. 8th Amendment! Roi Philippe.

Avant un an, je vous cite à paraître au tribunal de Dieu pour y recevoir votre juste châtiment ! Maudits ! Maudits ! tous maudits jusqu#039;à la treizième génération de vos races. Peter Dicken! Pour une passionnée d#039;histoire comme moi ce livre ne pouvait que me plaire. Rights! Il s#039;agit d#039;une oeuvre riche qui nous fait voyager de la France à l#039;Angleterre en passant par l#039;Italie le tout mêlé d#039;intrigues autant politiques qu#039;amoureuses. Une plongée magnifique dans l#039;histoire de France et celle des Templiers, portée par une très belle écriture. A Raisin! Dans ce premier tome, le portrait du roi Philippe Le Bel est d#039;une envergure incroyable. 8th Amendment! Saisissant.

Très Belle Ecriture! Très bon Livre! J#039;ai pris beaucoup de plaisir à découvrir un peu plus Philippe IV le Bel , que je ne connaissais qu#039;à travers ce que j#039;avais lu sur les templiers. Ce livre est à coup sûr un chef-d#039;oeuvre pour les amoureux d#039;histoire. No Child Behind Essay! De sa belle plume, l#039;auteur nous fait rencontrer les derniers templiers, et surtout fait le portrait du roi de fer Philippe IV le Bel, tant et si bien qu#039;en finissant le roman, on rights a l#039;impression de le connaitre intimement. Une manière tout à fait originale de nous faire découvrir une des périodes méconnues de l#039;histoire de France, le Bas Moyen Âge. C#039;est pas très sexy dit comme ça, mais l#039;auteur arrive à rendre passionnantes les intrigues de la cour, la lutte pour le pouvoir et l#039;honneur. Peter Dicken! À travers une multitude de personnages et de points de vue, l#039;auteur parvient à dresser un tableau complet et saisissant de l#039;époque et à ouvrir une fenêtre sur cette période. 8th Amendment! Il y a quelque chose de magique à découvrir ces personnalités qui en général ne sont réduites qu#039;à des dates dans les livres d#039;histoire, prendre vie sous nos yeux avec une réelle humanité qui nous fait sentir si proches d#039;elles. Sun Film! Le style simple permet de vraiment s#039;immerger dans l#039;histoire et s#039;y attacher et donne envie d#039;en apprendre plus sur cette période.

Une réussite dont je lirai la suite. Les Rois Maudits est l#039;une des fresques historiques les plus enthousiasmantes, les mieux écrites, que j#039;ai lues jusqu#039;ici, avec Fortune de France de Robert Merle ! Le Roi de Fer, qui jette les bases de la saga, est un roman brillantissime, qui nous immerge totalement au temps du roi Philippe le Bel, durant la dernière année de son règne, en 1314, laquelle clôt sept années passées à abattre le puissant Ordre des Chevaliers du Temple, dernier pouvoir à lui tenir tête. 8th Amendment Rights! Jacques de Molay, le Grand Maître, vient enfin d#039;avouer sous la torture toutes les infamies imputées à sa milice. Maurice Druon prend pour point de départ à son heptalogie la légende selon laquelle Jacques de Molay aurait lancé une malédiction au moment de son exécution à l#039;encontre de ceux qui ont œuvré à sa chute, ainsi qu#039;à l#039;encontre de leurs héritiers. Peter Dicken! On ne peut oublier la fameuse scène du bûcher d#039;où le vieil homme, possédé par une colère enragée, prononce à travers les flammes qui le ravagent ces paroles saisissantes : ” Pape Clément ! Chevalier Guillaume ! Roi Philippe ! Avant un an, je vous cite à paraître au tribunal de Dieu pour y recevoir votre juste jugement ! Maudits ! Maudits ! Maudits ! Tous maudits jusqu#039;à la treizième génération de vos races ! Deux autres fils conducteurs viennent interagir avec l#039;intrigue principale, voire l#039;influencer : la rivalité pour la succession d’Artois entre Mahaut d’Artois et son neveu Robert d’Artois et l’idylle amoureuse entre le banquier Guccio Baglioni et la noble Marie de Cressay (même si pour l#039;instant, cette dernière intrigue ne semble pas interférer avec l#039;Histoire, mais patience, les pièces du puzzle se mettent doucement en place !^^). L#039;auteur réussit l#039;exploit de brosser toute une galerie de personnages historiques au caractère varié très crédibles : le roi Philippe, majestueux et implacable, son frère Valois vaniteux et brouillon, ses fils aînés et puînés fades et médiocres, les serviteurs de la Couronne Marigny et Nogaret loyaux mais plus royalistes que le roi lui-même, son cousin Artois truculent et revanchard, sa tante Artois calculatrice et autoritaire, Tolomei le banquier siennois rusé et opportuniste. 8th Amendment Rights! D#039;ailleurs, peut-être que cette profusion de protagonistes pourra gêner au début le lecteur qui découvre seulement ce pan de notre histoire, et qu#039;il aura besoin d#039;un certain temps avant d#039;assimiler les identités et les intérêts privés de chacun. Of Memory! Car deux clans gravitent, complotent et intriguent autour du roi : d#039;un côté le parti des légistes et des tenants d#039;un état réformateur regroupant Marigny, Nogaret, Philippe de Poitiers, fils cadet du roi, Louis d#039;Evreux demi-frère du roi ; et de l#039;autre côté le parti des barons, favorables au retour d#039;un système politique traditionnel et féodal réuni autour de Charles de Valois, Louis de Navarre et Charles de Bigorre fils du roi, et Robert d#039;Artois. On sent que Maurice Druon s#039;est beaucoup documenté, non seulement sur la situation géopolitique de la France médiévale mais également sur la vie quotidienne de ses habitants (armement, nourriture, hygiène, vêtements, éclairage, système de chauffage. 8th Amendment Rights! ), si bien que l#039;on se sent complètement immergé dans l#039;histoire.

Cette documentation n#039;est jamais pesante mais se fond au contraire très naturellement au récit dans lequel aucun détail n#039;est négligé, jusqu#039;au vocabulaire de vieux français. Malgré les drames humains qui se jouent (la chute des Templiers, la chute des trois brus du roi provoquée par Robert d#039;Artois pour récupérer son comté, les malheurs conjugaux de la reine d#039;Angleterre), certaines scènes et certains dialogues sont vraiment très drôles : par exemple, la scène du conseil où le roi ne cesse de rabrouer son héritier d#039;un sec Taisez-vous, Louis ! suite à ses interventions toutes plus idiotes les unes que les autres ou la scène entre Mahaut et Robert d#039;Artois, accouru lui annoncer l#039;arrestation de ses filles et de sa nièce. ”- . Media! je veux qu#039;elle aide à sa ruine en allant braire devant le roi, et je veux qu#039;elle en crève de dépit. Lormet baîlla un bon coup. - Elle crèvera, Monseigneur, elle crèvera, soyez-en sûr, vous faites bien tout ce qu#039;il faut pour cela, dit-il. Chaque phrase, chaque mot fait mouche. 8th Amendment Rights! L#039;auteur sait comme personne renvoyer ses personnages vers la médiocrité, la vanité ou la solitude de leur vie en une formule définitive. Les portraits qu#039;il brosse sont criants de vérité. Americans Act In Essay! Ainsi, Philippe le Bel est décrit comme un roi dur et majestueux, insensible à l#039;amour, même filial ; et pourtant, il souffre parfois de cette distance qu#039;il a lui-même instaurée.

Mais pour la grandeur de l#039;Etat, il a renoncé à tout bonheur personnel ! Les personnages échappent à tout manichéisme, et même parmi les plus cruels ou les plus retors, il y a quelque chose e eux qui nous touche ou nous empêche de totalement les vouer aux gémonies. Ainsi, Marguerite de Navarre, qui tondue et revêtue de sa robe de bure, trouve encore la force de répondre crânement à sa belle-sœur : ”Moi, si je n#039;ai pas eu le bonheur, au moins j#039;ai eu le plaisir, qui vaut toutes les couronnes du monde, et je ne regrette rien ! On ressent toutes les émotions, tous les doutes, toutes les envies rentrées ou sursauts d#039;orgueil des personnages, tant les mots utilisés par l#039;auteur sont justes et précis. Les + : un contexte historique extrêmement bien resitué et exploité ; des personnages réalistes et captivants ; un style efficace et des dialogues savoureux. Les - : aucun à mes yeux. Le premier tome de la saga dans lequel on 8th amendment rights plonge rapidement. Peter Dicken! Malgré les nombreux personnages, on rights s#039;y retrouve facilement et les annexes à la fin nous apportent un bon complément et une bonne compréhension.

On en apprend beaucoup sur l#039;histoire de France et sur Philippe Le Bel. Les intrigues et les complots se mettent déjà en place ! Je comprends pourquoi Georges RR Martin s#039;en est inspiré pour Game of dali of memory, thrones ! Très agréable à lire, qu#039;on aime ou pas l#039;histoire. 8th Amendment! On passe un très bon moment de lecture, tout en apprenant beaucoup sur l#039;histoire de France. Un de ces livres, pas si nombreux, lus et relus moultes(*) fois. Sun Film! Style, puissance de l#039;intrigue, personnages, souffle. 8th Amendment Rights! Rien d#039;étonnant si cette série passe pour une des sources d#039;inspiration de Georges R.R. The Persistence Of Memory! Martin pour le trône de fer ! Et l#039;on y voit les manœuvres de quelques ambitions personnelles ou velléités de revanche (n#039;est-ce pas, Robert) provoquer des remous . Rights! historiques.

Je compte prolonger le plaisir avec le livre d#039;Eric le Nabour, Les rois maudits l#039;enquête historique. Left Behind Essay! J#039;en salive d#039;avance. (*) je sais, moult, c#039;est invariable, mais je trouve cela plus joli à prononcer. Une saga éblouissante qui vous plonge dans l#039;histoire de France. Si vous adorez l#039;histoire, cette saga est faite pour vous, si ce n#039;est pas le cas, passez votre chemin. Rights! Ce premier roman nous conte la vie de Philippe le Bel, ses amours, ses batailles, ses divergences familiales, bref une fresque historique digne de ce nom. Poetry Emerson! Une fresque écrite dans un style très très agréable, des descriptions fournies et pas trop longues et des dialogues dynamiques. magnifique fresque historique qui aura su me charmer au-delà de mes attentes. 8th Amendment! Jamais l#039;histoire ne m#039;a parue aussi facile à appréhender.

La trahison de Philippe le Bel, la malédication de Jacques de Molay. Dali The Persistence! Waouh! On découvre la royauté et ses problèmes de l#039;intérieur et. Rights! c#039;est génial! J#039;ai hâte de suivre la suite. Pas en diamant parce qu#039;en diamant, pour moi. No Child Left Behind! il n#039;y a que les livres intemporels dont l#039;histoire me poursuit encore des années après leur lecture. 8th Amendment! Harry potter 3. Les Rois Maudits, tome 1 : Le roi de fer. Livres ayant des themes similaires. Vos favoris l'ont en bibliotheque. Meilleurs classements dans les Listes Booknode.

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