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Business Internet Banking Help Centre. The HSBC Security Device has been designed to provide your business with some of the dissertation, highest levels of online protection. Here you can find out on bipedalism, how it works, get answers to deadlines questions you may have and consult our handy troubleshooting guide. Enhanced security to help protect your Business Internet Banking. Your Security Device is a two-factor authentication device that will help protect to you from fraud when you use Business Internet Banking. Service Thesis! With this technology, you enjoy a far more secure online banking service. Dissertation Deadlines! Your Security Device is book reviews unique to your Business Internet Banking and is protected by a PIN code.

The security codes it generates are displayed only on your device and are therefore seen only by you. You'll need your device to log on to Business Internet Banking, to add new beneficiaries (for example when you're paying someone for the first time), and deadlines if you want to add or amend a secondary user's profile. Book Critics Reviews! Watch our videos to find out deadlines, more about Business Internet Banking and essay lost love how to use your new Security Device: It is dissertation deadlines a small device, protected by essay a PIN code, which will help to protect you against Internet Banking fraud. Without it, you'll be unable to access Business Internet Banking. The device is used as an added layer of security to protect Business Internet Banking. When you try to log on to Business Internet Banking you'll be asked for a username and password (which you create when you activate the service).

You are also asked to enter a security code from this device. The Security Device helps protect you if someone obtains your log on dissertation deadlines details through deception (e.g. a Phishing email) as you always need to use the Security Device to access Business Internet Banking. Please make sure you protect it well. Think of it as the keys to essay lost love your safe. What if it's stolen or I lose it or I break it? On its own it is of no value to anyone else, as they would also need the security PIN and your username and password to log on.

If you lose or break the dissertation deadlines, device, let us know and we will immediately despatch a new one to you, but be aware you cannot log on until you receive it. Please call the Business Internet Banking Helpdesk. Alternatively, you can visit your local branch for a replacement. No, the device is security sealed. Any attempts to open the device or replace the battery will stop it working and you will be unable to log on to Business Internet Banking. The battery lifetime is measured in years rather than months.

The device will warn you two months before the battery expires, please contact us if you see this message and criticism we will replace the device. Please call the Business Internet Banking Helpdesk. Is it safe to send the Security Device by post? Yes, the Security Device must first be activated by you before it can be used to protect your logon to Business Internet Banking. For more about online security, visit our Security Centre. You'll find further, independent advice at the Government-backed site at dissertation deadlines www.getsafeonline.org. I am disabled and can't use the Security Device. Does this mean I can't use the service?

We have alternative solutions to cater for disabilities, please contact the Business Internet Banking Helpdesk to discuss options that would suit you and your business. HSBC Business Banking terms and conditions Read our current terms and medical conditions for business banking Business Internet Banking terms and conditions Additional terms and conditions for using Business Internet Banking. The green button - for generating security codes. Dissertation Deadlines! Press and hold for 2 seconds to turn on the device Enter your PIN Press once to delete one character, press and book reviews hold to dissertation clear the screen After you've entered your PIN and you see the 'HSBC' screen, press the green button again to generate a log on security code After 30 seconds of inactivity, the device will automatically switch off - your device does not have an essay on bipedalism, off button. The yellow button - for creating authorisation codes. Dissertation Deadlines! To create new or amend existing beneficiaries details, you'll need to malpractice essay use the yellow button to create an authorisation code You'll be prompted to do so at the relevant payments screen in Business Internet Banking. The '3' button - for dissertation deadlines getting confirmation codes. If you're a primary user and you want to create a new user profile for another person or amend someone else's existing user profile, you'll need to book use the deadlines, '3' button to create a confirmation code You'll be prompted to do so at the relevant screen in poisonwood bible, Business Internet Banking. Dissertation! Your Secure Key will tell you when something isn’t right. Click on the tabs below according to what you see onscreen and discover what you need to do.

This is the welcome screen. You will see this once your PIN has been accepted. 'NEW PIN' is displayed next to a dash. You will need to create a new Security Device PIN. Think of a PIN between 4 and 8 digits long. You should avoid using sequential or repeated numbers such as 1234 or 1111. Enter this into your Security Device and essay press the dissertation deadlines, yellow button. If you make a mistake entering your PIN, you can use the green button to delete the last digit you have input. 'PIN CONF' is displayed next to a number of dashes.

The PIN you are setting up needs to be confirmed. Please re-enter your chosen PIN. Essay Lost Love! 'PIN' is displayed next to several dashes. The Security Device is dissertation waiting for book critics reviews you to dissertation deadlines enter your PIN. The number of dashes shown on the screen is equal to essay lost love the number of digits in your PIN. If, when setting up your PIN for the first time, the two entries do not match, this message is displayed. Simply press the yellow button to return to the PIN setup and repeat the steps, making sure the two entries match, to dissertation set up your PIN. 'LOCK NEW PIN not SAFE' is displayed.

The new PIN you have entered is not safe and could be guessed. Please enter another PIN. Your PIN can be made up of difference essay any numbers as long as they don't follow a logical or sequential pattern, such as 123456 or 11111. 'PIN FAIL 1', 'PIN FAIL 2' or 'PIN FAIL 3' is displayed. If you enter an dissertation deadlines, incorrect PIN, you will see the message 'PIN FAIL 1' Lightly press the green button to enter your PIN again You will have three attempts to enter your PIN correctly Your Security Device will remember the number of critics failed attempts you have made So if you enter an deadlines, incorrect PIN again, you will see the message 'PIN FAIL 2' And after the third incorrect attempt ('PIN FAIL 3'), the Security Device will become locked Please click on the Lock PIN message below to find out what to do next. Malpractice Essay! 'LOCK PIN' is deadlines displayed next to a 7-digit code. If your HSBC Security Device is locked, it will display a seven-digit code on essay on bipedalism screen whenever it is turned on To continue using Business Internet Banking, you will need to reset your PIN online To do this, start logging on to Business Internet Banking and enter your user ID At the dissertation deadlines, next screen, click the 'Forgotten your Security Device PIN' Follow the on screen instructions and you will be given a PIN Reset Code Once you have the medical essay, code, press the green button lightly and dissertation quickly - do not hold it down You will then be prompted to input the code. 'LOCK PIN' is displayed next to 7 dashes. Your HSBC Security Device is waiting for you to poisonwood criticism essay enter your seven digit PIN reset code. Once you have entered the code, you will be prompted to set up a new PIN. If you enter an incorrect 'PIN reset code', a 'FAIL 1' message will be displayed You will then be prompted to input your PIN for the second time For your protection the Security Device will lock after three incorrect PIN entries Please contact the Business Internet Banking Helpdesk if this happens. 'FAIL 1', 'FAIL 2', or 'FAIL 3' is displayed. Dissertation! If you enter an incorrect PIN, you will see the message 'FAIL 1'. Press the green button to book critics reviews enter your PIN again.

You will have three attempts to enter your PIN correctly. Your Security Device will remember the number of failed attempts you have made, so if you enter an incorrect PIN again, you will see the message 'FAIL 2'. And after the third incorrect attempt ('FAIL 3'), the Security Device will become locked. Please click on dissertation deadlines the Lock PIN message below to find out critics, what to do next. 'LOCK PIN FAIL 1', 'LOCK PIN FAIL 2', 'LOCK PIN FAIL 3' or 'LOCK PIN FAIL 4' is displayed. These messages are displayed when the PIN reset code has been entered incorrectly Lightly press the green button and dissertation deadlines you will then be prompted to service thesis enter the reset code again Please ensure you are entering the reset code exactly as it appears on dissertation screen in your Business Internet Banking To protect you from fraud, the book reviews, Security Device will lock after four incorrect entries If the PIN reset code is entered incorrectly a fourth time, the Security Device will be temporarily locked and you will be unable to use it for approximately 1 hour The 'LOCK PIN FAIL 4' message will remain on the screen until the lock out has expired, then the Device will automatically power off When you turn your Security Device back on, 'LOCK PIN' will be displayed on the screen next to and a 7-digit number Lightly press the dissertation, green button and enter the PIN reset code again If you are unsure what your PIN reset code is, you can generate another code To do this, start logging on service thesis to Business Internet Banking and enter your user ID. At the next screen click the 'Forgotten your Security Device PIN', follow the on-screen instructions and you will be given another PIN Reset Code. 'LOCK NEW PIN' is displayed next to dissertation a dash. The Security Device is unlocked and quality thesis waiting for you to create a new Security Device PIN Think of deadlines a PIN between 4 and 8 digits long. Malpractice! You should avoid using sequential or repeated numbers such as 1234 or 1111 Enter this into your Security Device and dissertation deadlines press the yellow button Tip: If you make a mistake entering your PIN, you can use the green button to delete the last digit you have input. 'LOCK PIN CONF' is displayed next to a number of dashes. The PIN you are setting up needs to be confirmed.

Please re-enter your chosen PIN. Press the yellow button to return to the PIN setup and repeat the steps to set up a PIN. Unlock your device, then from the HSBC screen press and hold button 8 for leadership essay 2 seconds to access the change PIN function. Enter your new 4 to dissertation deadlines 8 digit PIN using the essay, keypad (Press the green button if you need to deadlines delete one character and hold it to clear the screen). If your new PIN is less than 8 digits you'll need to press the yellow button. If you choose an 8 digit PIN then the device will skip straight to the next screen and essay lost love ask you to dissertation confirm your PIN. Confirm your new PIN by re-entering it. When the final digit is entered the screen will automatically progress. (Press the essay lost love, Green button if you need to deadlines delete one character and management essay hold it to clear the screen.) 'NEW PIN CONF' is displayed for 2 seconds if the PIN is successfully changed. Dissertation! The device will turn off after 30 seconds. If you see a 'Fail PIN' message then the two PINs entered did not match and the Security Device PIN is NOT changed.

You can press the yellow button and poisonwood bible criticism re-start at step 1. Dissertation Deadlines! If you see a 'not SAFE' message displayed then the PIN entered is weak and can be guessed easily. You'll need to choose a new PIN and then confirm it to finish the process. The new PIN you have entered is quality not safe and could be guessed. Please enter another PIN. Deadlines! Your PIN can be made up of any numbers as long as they don't follow a logical or sequential pattern, such as 123456 or 11111. You have successfully set-up your PIN. You can now use your Security Device. This message indicates that a button is medical essay being pressed and dissertation held for too long. If you press and hold a button for more than 7 seconds, the device will switch off to critics reviews preserve battery life. Dissertation Deadlines! 'bAtt 0', 'bAtt 1' or 'bAtt 2' is displayed. These are the essay lost love, low battery messages.

The bAtt messages are displayed for two seconds each time the device is switched on. After two seconds, the device works as normal. bAtt 2: 2 months remaining. bAtt 1: 1 month remaining. bAtt 0: replacement needed. Please contact Business Internet Banking Helpdesk to arrange for dissertation deadlines a replacement device to be sent to you. For queries about Business Internet Banking, please call: Lines are open 8am to 10pm, 7 days a week, 365 days a year. Textphone 0345 712 5563. Essay Lost Love! If you're overseas, please call: +44 1792 496 941. Lines are open 8am to 10pm, 7 days a week, 365 days a year. Textphone 0345 712 5563. You are leaving the HSBC Commercial Banking website. Please be aware that the external site policies will differ from our website terms and conditions and privacy policy.

The next site will open in a new browser window or tab. You are leaving the HSBC CMB website. Please be aware that the external site policies will differ from our website terms and conditions and deadlines privacy policy. Poisonwood Bible! The next site will open in a new browser window or tab.

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Robert Kohen: Personalized Tutoring. The ACT recently changed the format of the optional essay, debuting the deadlines, new essay on the September 2015 exam. From September on, all essay prompts will require you to essay not only respond to a specific question, but to deadlines also read and address three unique perspectives on essay lost love, the question. While the new essay format is dissertation, admittedly more complex than the earlier version, it’s still very predictable and you can do very well on it with the right preparation. For advice on how to approach the essay lost love, essay, check out my post How To Write the New ACT Essay . Unfortunately, the ACT has only released a meager two sample prompts for you to preview. The first one is available on the ACT’s website here . Deadlines! The second is included in the most recent practice ACT the malpractice essay, test makers have released, available as a PDF here . In order to do your best on the essay, you’ll want to make sure you practice with more than just two essay question prompts. Here are ten additional new ACT sample essay question prompts I’ve written to help you prepare. You’ll have 40 minutes to complete each essay. Accelerating Globalization (Sample Essay Prompt 1) Only a few hundred years ago, communication between countries on opposite ends of the globe was painstakingly slow or non-existent. Most people knew little about distant lands, peoples and cultures.

What they thought they knew was frequently erroneous or ill conceived. Within the past hundred years, however, the pace of dissertation globalization has accelerated rapidly. Today travel across the essay lost love, globe in less than 24 hours is a real possibility for many people. Individuals and nations can instantly communicate with one another across great distances. Dissertation Deadlines! For better or worse, the world has become more connected than was ever imaginable before, and it continues to malpractice essay become more connected every day. Has globalization made the world a better or a worse place? Read and dissertation carefully consider these perspectives. Each suggests a particular way of thinking about the effects of globalization. Globalization, despite its lustrous promises, has created more problems than it has solved. It has allowed rich countries to get richer at essay lost love the expense of deadlines poorer countries, and it has increased, not decreased, the number of armed conflicts in hotel quality thesis, the world. The world is dissertation, undoubtedly a better place today because of globalization.

It has allowed critical resources to be distributed to the governments and people that need them the most. While I celebrate the productive exchange of cultures globalization has facilitated, I worry about how globalization is homogenizing those cultures. Hotel! Take languages—do we really want to live in a world where one day everyone only speaks only one global language? Write a unified, coherent essay in which you evaluate multiple perspectives on the impact of globalization on the world. In your essay, be sure to: analyze and dissertation evaluate the perspectives given state and develop your own perspective on the issue explain the relationship between your perspective and those given.

Your perspective may be in essay lost love, full agreement with any of the others, in partial agreement, or wholly different. Whatever the case, support your ideas with logical reasoning and detailed, persuasive examples. Technology and Everyday Life (Sample Essay Prompt 2) Technology has radically changed the way we interact with the world. Not long ago, individuals who wanted to get in dissertation, touch had to do so either by meeting in person or sending messages through postal mail. In order to perform most types of research, people were forced to visit physical libraries, bookstores or archives. Over the past two decades, technology has rendered many of these time-consuming tasks obsolete. Messages can be sent anywhere in poisonwood criticism essay, the world via email in only a matter of dissertation deadlines seconds. All sorts of information is available with the click of a smart phone button. People can not only call individuals anytime, but they can also access their geolocation on demand.

It seems like everyone is on his or her smart phone every waking minute. Has this increase in the power and reach of technology bettered out difference leadership management, lives? Read and carefully consider these perspectives. Each suggests a particular way of thinking about the presence of technology in our lives. Today’s technology has greatly bettered our lives. Individuals are more connected to the information and people they want to connect with, and the result is smarter, happier and more fulfilled human beings.

Technology promises to “connect” us with one another. But look around and you’ll see how disconnected it’s made us—individuals no longer interact with one another because they’ve become so consumed by their phones and devices. Technology may have made the dissertation, world a better place for those who have access to it, but its prohibitive costs have made it inaccessible, and consequently unhelpful, to too many people. Write a unified, coherent essay in which you evaluate multiple perspectives on the impact of technology on our lives. In your essay, be sure to: analyze and evaluate the perspectives given state and develop your own perspective on service quality, the issue explain the relationship between your perspective and those given. Your perspective may be in full agreement with any of the others, in dissertation deadlines, partial agreement, or wholly different. Whatever the case, support your ideas with logical reasoning and detailed, persuasive examples. College Sports (Sample Essay Prompt 3) College sports have become incredibly popular in the United States. Big games air on the most coveted TV channels at thesis the most coveted times.

Teams are followed not only by loyal students and alumni but also by diverse fans from across the country. Major athletic programs bring millions of dollars to university coffers. Star coaches can often earn more than university presidents, making them the highest paid employees on campus. Full scholarships are awarded to star athletes because of dissertation their athletic prowess rather than their academic record. In some instances, athletes are even given fake grades to essay on bipedalism help them stay on dissertation deadlines, the team. Given all of this, should colleges continue to support their sports teams? Read and carefully consider these perspectives. Each suggests a particular way of thinking about the role of athletics at colleges. Colleges should strongly support their sports teams. These teams not only generate millions of dollars for schools, but they also help sell prospective students on attending the college.

Sports have no official place in college. Colleges are institutions created for poisonwood bible criticism essay, learning, not for athletics. College sports compromise academic standards and disadvantage students who don’t participate. While college sports play a valuable role on university campuses, it is important for administrators to not lose perspective. That some football coaches earn more than university presidents, for example, is clearly wrong. Write a unified, coherent essay in which you evaluate multiple perspectives on college support for sports teams.

In your essay, be sure to: analyze and evaluate the perspectives given state and develop your own perspective on the issue explain the deadlines, relationship between your perspective and those given. Your perspective may be in full agreement with any of the others, in book reviews, partial agreement, or wholly different. Whatever the case, support your ideas with logical reasoning and deadlines detailed, persuasive examples. College Curricula (Sample Essay Prompt 4) For years, American colleges have emphasized the liberal arts over more narrow technical and professional training.

College students have been required to study a broad range of academic disciplines, such as literature, philosophy, history and mathematics. Today, however, a growing number of essay lost love colleges and students have rejected the liberal arts in favor of deadlines what some consider to be more practical subjects, such as accounting, finance and nutrition. Global economic hardship has led many to question the value of a liberal arts education that, in on bipedalism, their eyes, fails to adequately prepare students for the realities they will face after graduation. Is it important for dissertation deadlines, colleges to promote the study of the liberal arts, or should they emphasize professional and essay lost love technical training in its place? Read and carefully consider these perspectives. Each suggests a particular way of thinking about college curricula. The liberal arts are essential to a quality education because they teach students how to think critically about a broad range of topics, thus preparing them to tackle any issue that might arise in the workplace. It is time to bury the liberal arts model at our colleges. Reading Shakespeare and studying pure mathematics will not help anyone be successful in any sort of business.

Colleges should closely integrate the liberal arts with professional studies, as each can benefit from the dissertation deadlines, other. On Bipedalism! Business courses, for example, are enriched by dissertation the philosophical study of ethics. Write a unified, coherent essay in which you evaluate multiple perspectives on the relative importance of the liberal arts and professional studies. In your essay, be sure to: analyze and evaluate the perspectives given state and develop your own perspective on service quality thesis, the issue explain the relationship between your perspective and those given. Your perspective may be in full agreement with any of the deadlines, others, in partial agreement, or wholly different. Whatever the case, support your ideas with logical reasoning and detailed, persuasive examples. Arts Funding (Sample Essay Prompt 5) Government funding for the arts is commonplace in many countries today. In the essay lost love, United States, the government funds writers, musicians and visual artists through a variety of initiatives. Critics of this type of funding argue that the government has no place in the arts.

Why should taxpayers, the majority of whom have no interest in dissertation deadlines, the works being supported by such funding, be forced to pay for book critics, those works? Others, however, argue that government funding for the arts is critical to the wellness of our society. Given the dismal financial prospects in dissertation, the arts, many artists would be unable to support themselves without the type of thesis funding that the government provides. Should the government continue to fund the arts? Read and carefully consider these perspectives. Each suggests a particular way of thinking about the dissertation deadlines, government funding for the arts. The government has no place in the arts because the government is not qualified to judge which projects should receive funding and which should not. Without financial support from the government, many great works of art would never be created.

Government funding is on bipedalism, thus essential. The free marketplace, not the government, is the best source of arts funding. If an artist can’t get any money, the reason is simple—her work is dissertation, not very good! Write a unified, coherent essay in which you evaluate multiple perspectives on government funding of the arts. In your essay, be sure to: analyze and evaluate the perspectives given state and essay lost love develop your own perspective on the issue explain the relationship between your perspective and those given. Your perspective may be in full agreement with any of the others, in partial agreement, or wholly different. Whatever the case, support your ideas with logical reasoning and detailed, persuasive examples. Corporate Responsibility (Sample Essay Prompt 6) Large corporations make up some of the wealthiest entities in deadlines, the world today.

Some see these corporations as engines of difference leadership management essay economic development and dissertation deadlines progress, bringing better products at better prices to a wider range of poisonwood bible criticism essay people every day. Others, however, criticize corporations for dissertation deadlines, their shortcomings when it comes to social responsibility: failing to assist the less fortunate in essay lost love, our society, including their workers, while focusing too narrowly on profits at the expense of social welfare. Should corporations do more than simply aim to improve their profit margins? Is it important for large corporations to set aside profits from time to time in order to donate to charities and to help the needy? Read and carefully consider these perspectives. Each suggests a particular way of thinking about corporate responsibility. Corporations have only one responsibility: to make the greatest profit they possibly can.

It is only by doing so that they can benefit their workers, shareholders, and society. Profits often get in deadlines, the way of doing the right thing. Large corporations should focus less on profits and essay lost love more on deadlines, developing meaningful ways of hotel helping the disadvantaged. It is deadlines, important that corporations adhere to any and all laws that pertain to them. Beyond this, however, they are free to do as they please. Write a unified, coherent essay in which you evaluate multiple perspectives on corporate responsibility. In your essay, be sure to: analyze and poisonwood criticism essay evaluate the perspectives given state and deadlines develop your own perspective on essay lost love, the issue explain the dissertation, relationship between your perspective and those given. Your perspective may be in full agreement with any of the others, in partial agreement, or wholly different.

Whatever the case, support your ideas with logical reasoning and detailed, persuasive examples. The Federal Government (Sample Essay Prompt 7) The United States government is made up of various national, state and local governing bodies. Certain responsibilities, like the building of interstate roadways, are looked after by the national, or federal, government, whereas more local issues are often overseen by local government bodies like state legislatures or city councils. Medical! Many argue that states and cities in the United States wield too much power, power that they believe should belong in the hands of the federal government. Others contend that the federal government is too large and is unresponsive to the particular needs of states and cities; they would like to deadlines see local government overtake many of the responsibilities now delegated to the federal government. Essay On Bipedalism! Should the federal government or local governing bodies have more power? Read and carefully consider these perspectives. Each suggests a particular way of deadlines thinking about the role of the federal government. States and cities are ill-equipped to book handle most of their own governing. The federal government can do not only a better job of governing them, but a faster and cheaper one.

The federal government is too big to dissertation deadlines adequately address the needs of essay on bipedalism individual states and cities. States and cities know what is best for them, not the federal government. Local government fails only dissertation deadlines, when it lacks the backing of the federal government. The federal government should provide logistical and financial support to states and cities in order to enable them to govern themselves effectively. Write a unified, coherent essay in which you evaluate multiple perspectives on hotel service, the relative roles of deadlines local and essay lost love federal government. In your essay, be sure to: analyze and evaluate the perspectives given state and develop your own perspective on the issue explain the dissertation, relationship between your perspective and essay those given. Your perspective may be in dissertation deadlines, full agreement with any of the essay lost love, others, in partial agreement, or wholly different. Whatever the case, support your ideas with logical reasoning and detailed, persuasive examples. Religious Liberty (Sample Essay Prompt 8) The relationship between religious liberty and individual rights has often been a problematic one throughout American history. Dissertation! Today, for example, many businesses feel compelled to refuse service to homosexuals because of the religious beliefs of the business owners.

Some argue that this refusal of service constitutes unlawful discrimination. Public school boards are often uncertain which religious holidays to book reviews add to the academic calendar. Should a Christian student, for instance, have to miss school because of deadlines a Jewish holiday? How should the state balance the need to respect religious liberty with need to preserve the rights of all members of society? Read and essay lost love carefully consider these perspectives. Each suggests a particular way of thinking about religious liberty and individual rights. The state must accommodate all religions to the fullest extent possible. This means school days off for all major religious holidays and protecting the dissertation deadlines, right of business owners to difference leadership refuse service based on religious beliefs. The government has no special obligation to protect religious liberties when they interfere with the freedoms and well-being of the public at large.

Government should seek, to deadlines the greatest extent possible, ways to accommodate both religious liberty and individual rights when the two find themselves in conflict. Write a unified, coherent essay in which you evaluate multiple perspectives on essay lost love, the state and religious liberty. Dissertation! In your essay, be sure to: analyze and difference leadership evaluate the perspectives given state and develop your own perspective on the issue explain the relationship between your perspective and those given. Your perspective may be in full agreement with any of the dissertation, others, in partial agreement, or wholly different. Whatever the case, support your ideas with logical reasoning and detailed, persuasive examples. Solving Society’s Problems (Sample Prompt 9) The world today faces a wide range of challenges. Despite the great economic and essay lost love scientific progress mankind has made, many in the world are still struggling to dissertation deadlines survive. Even in developed nations, individuals and communities face problems like poverty, disease and violence. Individuals and private organizations have done much to essay lost love help alleviate many of these problems. Government have also played a role in addressing issues like poverty and public health.

In your opinion, who has a bigger role to deadlines play in essay lost love, solving today’s problems: governments or individuals? Read and carefully consider these perspectives. Deadlines! Each suggests a particular way of book thinking about the role of government and individuals in solving today’s problems. Individuals could not possibly hope to solve problems as large as the ones we face today. Only large governments with sizable resources can help.

Governments are, by nature, composed of individuals working as a team. Governments can solve major problems because they harness the power of individuals. The best solutions to society’s problems always come from individuals, not governments. Dissertation Deadlines! Governments lack the creativity and drive necessary to tackle major problems successfully. Write a unified, coherent essay in which you evaluate multiple perspectives on the role of individuals and governments as problem solvers.

In your essay, be sure to: analyze and evaluate the perspectives given state and develop your own perspective on the issue explain the relationship between your perspective and those given. Your perspective may be in full agreement with any of the others, in partial agreement, or wholly different. Whatever the case, support your ideas with logical reasoning and thesis detailed, persuasive examples. Avoiding Armed Conflicts (Sample Prompt 10) Armed conflicts between nations have always been and remain, unfortunately, a constant fact of life. How politicians and governments seek to avoid of dissertation these conflicts, however, varies greatly. Many leaders and political thinkers insist on the importance of demonstrating military might in order to reduce the likelihood of such conflicts. Others argue that flexing military muscle is basically inviting armed conflict, and that the best way nations can avoid conflicts is simply by keeping an open line of communication with one another. When forced to choose between a strong showing of military might and diplomatic efforts, which should nations choose in order to avoid armed conflicts?

Read and carefully consider these perspectives. Malpractice! Each suggests a particular way of thinking about deadlines how military might and difference essay diplomatic efforts can prevent armed conflicts. Without a strong showing of military might, a nation will lead its enemies to believe that it is weak and vulnerable to attack. The result is, inevitably, such an dissertation attack. International conflicts can quickly escalate into full-blown armed conflicts unless the nations involved talk to one another and learn to settle their differences through words rather than bombs. Demonstrating military might is always a better way to prevent armed conflict than diplomacy, because whereas military might is a deterrent to difference essay conflict, diplomacy rarely succeeds in resolving international disagreements. Write a unified, coherent essay in dissertation deadlines, which you evaluate multiple perspectives on the respective roles of diplomacy and military might.

In your essay, be sure to: analyze and evaluate the perspectives given state and develop your own perspective on the issue explain the relationship between your perspective and those given. Your perspective may be in full agreement with any of the others, in partial agreement, or wholly different. Whatever the case, support your ideas with logical reasoning and detailed, persuasive examples.

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50 essays orwell 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 dissertation deadlines 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 essay, other serious consequences. Dissertation? Massachusetts DUI and difference essay, Massachusetts OUI Violations Here is the dissertation deadlines, Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the essay lost love, influence of alcohol or drugs. According to Massachusetts DUI law, a person is considered too impaired to operate a vehicle if his blood alcohol concentration (BAC) is .08% or greater.

If a driver is under the deadlines, age of 21, he or she is prohibited from driving if his or her BAC is higher than .02%. Any driver in Boston or throughout the book, 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, it’s best to contact a seasoned Boston DUI lawyer who has the experience and skill to defend you in court. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and always prosecute those people in court. There are defenses to a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer#8217;s subjective conclusions regarding your coordination and stability, and the inaccuracy of breathalyzer machines.

Field sobriety tests, for example, are not reliable indicators of intoxication. Especially when asked to perform them at night, on the shoulder of the road, in the cold, in the glaring squad car headlights. We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at dissertation deadlines 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 medical malpractice, one year of probation and, and you can get a hardship driver#8217;s license within four days of the plea hearing. A second DUI is harsher, and often requires going to trial. A second offense is punished by a minimum of two weeks in an alcohol facility and a 60-day suspended sentence, two-year license revocation with no hardship license for six months. A third DUI is punished with no less than 150 days of mandatory jail time, eight year license revocation, with no hardship license considered for two years.

Massachusetts OUI/DUI Law First Offense Penalty. Deadlines? •Jail: Not more than 2 1/2 years House of Correction. Essay Lost Love? •License suspended for 1 year; work/education hardship considered in 3 months; general hardship in dissertation deadlines, 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. Essay Lost Love? 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 dissertation deadlines, 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 medical malpractice 210 days for drivers under age 21. •You are eligible for a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties: The minimum penalty (above) is almost always available for a first offense DUI/OUI plea, if your lawyer has OUI defense experience and knows what to ask for, and as long as there is no accident, injury, or other extenuating circumstances. Dissertation? In addition, a smart attorney will include all other charges in book reviews, the plea deal, including civil speeding ticket/moving violations as part of the same penalty, saving you fines and insurance increases. Massachusetts OUI Law Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years. •License suspended for 2 years, work/education hardship considered in 1 year; general hardship in dissertation deadlines, 18 months. (Note: In almost every case, with a breath test refusal or failure you won#8217;t be eligible for a hardship or full license restoration for at essay least 3 years total.) •As of January 1, 2006 Interlock device installed in your car at your own expense for 2 years, when you become eligible for hardship or license reinstatement. Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for by the defendant. •License suspended for two years, work/education hardship considered in dissertation deadlines, 1 year; general hardship in 18 months. •As of January 1, 2006 Interlock device installed in your car at book reviews your own expense for 2 years as a condition of any license reinstatement (including hardship license). •If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only be the dissertation, penalties of a first offense. The Registry, however, would still treat you as a 2nd offender for license reinstatement. The Real Deal on 2nd Offense OUI Penalties: See my second offense OUI penalties page for detail on the implications of a 2nd offense drunk driving defense. I can almost always negotiate for the Alternative Disposition above for any second offense OUI conviction, but it is still a tough punishment to accept for many people.

Given that there isn#8217;t that much risk of a worse outcome if you choose to fight the case in court, most people choose to take a chance at no penalty, even on a weak case. Remember, even if the prior is in another state, or decades old, you will be forced to critics reviews get an interlock device installed in dissertation deadlines, your car as a condition of leadership management, license reinstatement. The Registry is harsh on this point, and there is nothing any lawyer can do about it. If you are facing a 2nd offense DUI, this in itself is dissertation deadlines a good reason to difference leadership management 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. Dissertation Deadlines? •License suspended for 8 years, work/education hardship considered in 2 years; general hardship in essay lost love, 4 years. Dissertation? •Commonwealth may seize, keep, and/or sell your vehicle. Book Critics Reviews? 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. Dissertation? For a 3rd offense charge, this is a good reason to fight the case and look for a chance to thesis win and avoid jail time. It usually only makes sense to work out a deal if jail time is off the table, which only dissertation happens if the court can#8217;t provide sufficient proof of the prior offenses (This can happen if prior DUI convictions are are old, or out of state.) More on third offense DUI charge strategies. MASSACHUSETTS OUI LAW FOURTH OFFENSE (4th) Penalties. Service? •Jail: Not less than 2 years (1 year minimum mandatory), not more than 5 years in State Prison (4th Offense OUI is a Felony Offense) •License suspended for 10 years, work/education hardship considered in 5 years; general hardship in deadlines, 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 bible criticism a 4th, 5th or subsequent drunk driving charge.

Even a small chance of winning the case is worth the risk, since it is probably your only chance to avoid jail time. You need to consider fighting your case at trial in almost all cases. MASSACHUSETTS OUI/DUI LAWS FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the dissertation deadlines, punishment and mandatory jail time you are risking if found guilty will even longer. Reviews? Call me for details. OUI With Serious Bodily Injury Penalties. Dissertation? If you are charged with an OUI where someone is injured, you are almost certain to management do jail time. The cases become extremely complicated and dissertation deadlines, you need the advice of a DUI OUI lawyer. You can face penalties of 6 months to 2.5 years in jail or 6 months to 10 years in State Prison depending on how your DUI or OUI violation is charged and prosecuted.

Here is hotel quality thesis a copy of the Massachusetts DUI and OUI Laws. Section 24. Deadlines? (1) (a) (1) Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by essay on bipedalism, weight, of alcohol in their blood of dissertation, eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for hotel service thesis, not more than two and one-half years, or both such fine and imprisonment. There shall be an assessment of $250 against a person who is convicted of, is placed on dissertation, probation for, or is essay granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of dissertation, sufficient facts of operating a motor vehicle while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances under this section; provided, however, that but $150 of the amount collected under this assessment shall be deposited monthly by the court with the state treasurer for who shall deposit it into the Head Injury Treatment Services Trust Fund, and essay lost love, 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 dissertation assessment of $50 against a person who is convicted, placed on probation or granted a continuance without a finding or who otherwise pleads guilty to or admits to a finding of sufficient facts for essay lost love, operating a motor vehicle while under the dissertation deadlines, influence of intoxicating liquor or under the essay lost love, influence of marihuana, narcotic drugs, depressants or stimulant substances, all as defined by dissertation, section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of section 24G or section 24L.

The assessment shall not be subject to waiver by the court for any reason. If a person against whom a fine is assessed is medical malpractice essay sentenced to a correctional facility and the assessment has not been paid, the court shall note the assessment on the mittimus. Dissertation Deadlines? The monies collected pursuant to the fees established by book critics, this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the monies, from time to time, into the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to deadlines said section 66 of said chapter 10, by the victim and witness assistance board for the purposes set forth in said section 66. Fees paid by an individual into the Victims of essay, Drunk Driving Trust Fund pursuant to this section shall be in addition to, and not in lieu of, any other fee imposed by the court pursuant to this chapter or any other chapter. The administrative office of the deadlines, trial court shall file a report detailing the amount of funds imposed and essay, collected pursuant to this section to the house and senate committees on ways and means and to deadlines the victim and essay, witness assistance board not later than August 15 of each calendar year. Dissertation Deadlines? 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 medical malpractice essay, date of the commission of the deadlines, offense for which he has been convicted, the defendant shall be punished by a fine of essay, 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 dissertation, one-half years; provided, however, that the sentence imposed upon such person shall not be reduced to less than thirty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until such person has served thirty days of such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of essay lost love, a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to dissertation obtain emergency medical or psychiatric services unavailable at book critics reviews said institution; to engage in employment pursuant to a work release program; or for dissertation, the purposes of an medical malpractice essay aftercare program designed to dissertation support the on bipedalism, 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 deadlines, defendant may serve all or part of such thirty day sentence to the extent such resources are available in essay lost love, 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 deadlines, a like offense two times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by book critics reviews, imprisonment for 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 dissertation, 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 difference leadership essay, such sentence; provided, further, that the commissioner of dissertation, correction may, on the recommendation of the warden, superintendent, or other person in charge of poisonwood essay, a correctional institution, or the dissertation, administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the funeral of a relative, to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to difference a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such one hundred and fifty days sentence to the extent such resources are available in a correctional facility specifically designated by the department of deadlines, correction for the incarceration and poisonwood bible, rehabilitation of drinking drivers.

If the dissertation deadlines, defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by service, a court of the dissertation deadlines, commonwealth or any other jurisdiction because of essay, a like offense three times preceding the date of the commission of the deadlines, offense for which he has been convicted the defendant shall be punished by a fine of essay lost love, not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and one-half years, or by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon dissertation, 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 hotel quality thesis officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by 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 rehabilitation of drinking drivers. If the deadlines, 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 essay on bipedalism, a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the dissertation deadlines, defendant shall be punished by quality thesis, a fine of not less than two thousand nor more than fifty thousand dollars and by imprisonment for not less than two and dissertation, one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by on bipedalism, 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 dissertation deadlines, probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served twenty-four months of such sentence; provided, further, that the 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 leadership management, the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an deadlines alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twenty-four months sentence to the extent that resources are available in 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. Essay Lost Love? No trial shall be commenced on dissertation deadlines, 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 thesis, commissioner of deadlines, probation pertaining to hotel service thesis the defendant#8217;s record, if any, of prior convictions of such violations or of assignment to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the provisions of this paragraph shall not justify the deadlines, postponement of any such trial or of the acceptance of criticism, any such plea for dissertation deadlines, more than five working days after the date of the essay on bipedalism, defendant#8217;s arraignment. The commissioner of deadlines, probation shall give priority to requests for hotel service, such records. At any time before the commencement of a trial or acceptance of a plea on a complaint alleging a violation of this subparagraph, the dissertation deadlines, prosecutor may apply for essay on bipedalism, the issuance of a new complaint pursuant to section thirty-five A of chapter two hundred and eighteen alleging a violation of this subparagraph and one or more prior like violations. If such application is made, upon motion of the prosecutor, the court shall stay further proceedings on the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the court shall dismiss the dissertation, original complaint and order that further proceedings on the new complaint be postponed until the defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to section twenty-six A of poisonwood essay, chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on all elements of said complaint.

(2) Except as provided in subparagraph (4) the provisions of section eighty-seven of deadlines, chapter two hundred and seventy-six shall not apply to any person charged with a violation of subparagraph (1) and if said person has been convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the commission of the offense with which he is charged. (3) Notwithstanding the provisions of section six A of chapter two hundred and quality, seventy-nine, the dissertation, court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the date of the commission of the hotel service thesis, offense for which he has been convicted. (4) Notwithstanding the dissertation, provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on essay lost love, 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 date of the commission of the offense for which he has been convicted, shall receive a report from the probation department of a copy of the dissertation, defendant#8217;s driving record, the criminal record of the defendant, if any, and such information as may be available as to on bipedalism the defendant#8217;s use of alcohol and may, upon dissertation deadlines, a written finding that appropriate and adequate treatment is hotel thesis available to dissertation the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant#8217;s consent place a defendant on probation for bible, two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to participate in an out patient counseling program designed for deadlines, such offenders as provided or sanctioned by medical malpractice, the division of alcoholism, pursuant to regulations to be promulgated by said division in consultation with the department of correction and with the approval of the secretary of health and human services or at any other facility so sanctioned or regulated as may be established by the commonwealth or any political subdivision thereof for the purpose of alcohol or drug treatment or rehabilitation, and comply with all conditions of dissertation deadlines, 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. On Bipedalism? Failure of the defendant to comply with said conditions and any other terms of dissertation deadlines, probation as imposed under this section shall be reported forthwith to essay the court and proceedings under the provisions of section three of chapter two hundred and seventy-nine shall be commenced. In such proceedings, such defendant shall be taken before the court and dissertation deadlines, if the hotel service quality thesis, court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in the conditions of deadlines, probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and unless such defendant shows extraordinary and compelling reasons for such failure, shall forthwith sentence him to imprisonment for not less than two days; provided, however, that such sentence shall not be reduced to less than two days, nor suspended, nor shall such person be eligible for furlough or receive any reduction from his sentence for book, good conduct until such person has served two days of dissertation, such sentence; and provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or of the essay, administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in deadlines, the custody of an officer of such institution for the following purposes only: to attend the funeral of medical malpractice, 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 a work release program. If such defendant fails to attend or complete the deadlines, residential alcohol treatment program before the second date specified by essay lost love, the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to dissertation deadlines imprisonment for not less than thirty days as provided in subparagraph (1) for malpractice, such a defendant. The defendant shall pay for dissertation, the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and essay lost love, 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 court enters a written finding thereof. In lieu of waiver of the entire amount of dissertation deadlines, said fee, the court may direct such individual to make partial or installment payments of the essay lost love, cost of said program. (b) A conviction of a violation of subparagraph (1) of paragraph (a) shall revoke the license or right to deadlines operate of the person so convicted unless such person has not been convicted of management essay, or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of dissertation, a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the criticism essay, offense for which he has been convicted, and said person qualifies for disposition under section twenty-four D and has consented to probation as provided for in said section twenty-four D; provided, however, that no appeal, motion for dissertation, new trial or exceptions shall operate to stay the revocation of the license or the medical malpractice essay, right to 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 dissertation operate to the registrar and to essay the police department of the municipality in which the defendant is domiciled. Notwithstanding the provisions of section twenty-two, the dissertation, 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 hotel quality, twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and deadlines, such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction preceding the date of the commission of the offense for which he has been convicted, the registrar shall not restore the quality thesis, license or reinstate the right to operate to such person unless the prosecution of such person has been terminated in favor of the defendant, until one year after the date of conviction; provided, however, that such person may, after the deadlines, expiration of three months from the date of conviction, apply for and shall be granted a hearing before the registrar for book, the purpose of requesting the issuance of a new license for employment or educational purposes, which license shall be effective for not more than an deadlines identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and book reviews, provided, further, that such person may, after the expiration of six months from the deadlines, 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 medical essay, the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the license or the dissertation deadlines, right to operate of hotel service quality, a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation preceding the dissertation deadlines, date of the commission of the offense for which such person has been convicted, the registrar shall not restore the license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until 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 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 residential treatment program in subparagraph (4) of poisonwood essay, paragraph (a) of subdivision (1), or such treatment program mandated by section twenty-four D, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and dissertation deadlines, provided, further, that such person may, after the book, expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of deadlines, a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an essay lost love ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (3) Where the license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of a like offense by a court of the commonwealth or any other jurisdiction two times preceding the date of the commission of the crime for which he has been convicted or where the license or right to operate has been revoked pursuant to section twenty-three due to a violation of said section due to a prior revocation under paragraph (b) or under section twenty-four D or twenty-four E, the registrar shall not restore the license or reinstate the dissertation deadlines, right to on bipedalism operate to such person, unless the prosecution of deadlines, such person has terminated in favor of the medical, defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of dissertation, a new license for employment or education purposes, which license shall be effective for not more than an identical twelve hour period every day, on the grounds of hardship and critics reviews, a showing by the person that the causes of the present and past violations have been dealt with or brought under control and dissertation deadlines, the registrar may, in his discretion, issue such license under such terms and essay lost love, conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of four years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on dissertation, a limited basis on the grounds of hardship and a showing by the person that the causes of the present and book critics, past violations have been dealt with or brought under control and the registrar may, in dissertation deadlines, his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by the registrar under this subparagraph shall be that such person have an difference management essay ignition interlock device installed on each vehicle owned, each vehicle leased and each vehicle operated by the licensee for the duration of the hardship license. (31/2) Where the dissertation, license or the right to operate of poisonwood criticism essay, a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the deadlines, offense for which such person has been convicted, the poisonwood criticism, registrar shall not restore the dissertation, license or reinstate the right to operate of such person unless the prosecution of such person has been terminated in favor of the defendant, until ten years after the date of the conviction; provided, however, that such person may, after the expiration of essay lost love, five years from the date of the 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 an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and dissertation deadlines, conditions as he deems appropriate and critics, necessary; and provided, further, that such person may, after the expiration of eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the deadlines, issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under the terms and conditions as he deems appropriate and necessary. A mandatory restriction on 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 book critics, the licensee for dissertation deadlines, 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 essay lost love, a court of the dissertation deadlines, commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the commission of the offense for which such person has been convicted, such person#8217;s license or right to operate a motor vehicle shall be revoked for essay on bipedalism, 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 deadlines, chapter thirty A, from any order of the registrar of essay, motor vehicles under the provisions of this section. Deadlines? (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by difference essay, either certified attested copies of original court papers, or certified attested copies of the defendant#8217;s biographical and informational data from records of the department of probation, any jail or house of corrections, the department of correction, or the dissertation, registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant#8217;s guilt on the primary offense, as evidence in any court of the on bipedalism, commonwealth to dissertation prove the defendant#8217;s commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. (d) For the purposes of subdivision (1) of essay lost love, 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 probation without sentence or under a suspended sentence or the case was placed on file, and a license may be revoked under paragraph (b) hereof notwithstanding the pendency of a prosecution upon appeal or otherwise after such a conviction. Where there has been more than one conviction in the same prosecution, the 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 defendant#8217;s blood at the time of the dissertation, alleged offense, as shown by poisonwood, chemical test or analysis of his blood or as indicated by a chemical test or analysis of deadlines, his breath, shall be admissible and deemed relevant to the determination of the on bipedalism, question of whether such defendant was at such time under the dissertation deadlines, influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the essay, consent of the dissertation deadlines, defendant, the results thereof were made available to him upon his request and the defendant was afforded a reasonable opportunity, at his request and at his expense, to hotel thesis have another such test or analysis made by a person or physician selected by him; and provided, further, that blood shall not be withdrawn from any party for dissertation, 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 him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of reviews, intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to believe that the deadlines, person arrested had been operating a motor vehicle upon any such way or place while under the influence of intoxicating liquor; provided, however, that in poisonwood criticism essay, an instance where a defendant is under the age of twenty-one and such evidence is that the percentage, by weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of paragraph (f), suspend such defendant#8217;s license or permit and take all other actions directed therein, if such evidence is that such percentage was more than five one-hundredths but less than eight one-hundredths there shall be no permissible inference. A certificate, signed and sworn to, by a chemist of the department of the state police or by a chemist of a laboratory certified by the department of public health, which contains the results of an dissertation deadlines analysis made by such chemist of the essay lost love, percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon any way or in any place to which the public has right to dissertation access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in leadership management, 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 deadlines a blood test unless such person has been brought for treatment to essay 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 deadlines, use of anticoagulants shall be deemed to have consented to a withdrawal of blood. Such test shall be administered at the direction of a police officer, as defined in section 1 of chapter 90C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. 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 book critics operate motor vehicles in the commonwealth shall be suspended for a period of at deadlines least 180 days and up to medical a lifetime loss, for such refusal, no such test or analysis shall be made and dissertation deadlines, he shall have his license or right to operate suspended in accordance with this paragraph for a period of reviews, 180 days; provided, however, that any person who is under the age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of section 24G, operating a motor vehicle with a percentage by deadlines, weight of blood alcohol of eight one-hundredths or greater, or while under the service, influence of intoxicating liquor in violation of subsection (b) of dissertation, 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 book critics reviews, 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 deadlines, 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 hotel thesis, provided, further, that a person previously convicted of dissertation deadlines, 3 or more such violations shall have his license or right to operate suspended forthwith for life based upon essay on bipedalism, 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 any such test or analysis after having been convicted of a violation of subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. Dissertation Deadlines? If a person refuses to take a test under this paragraph, the police officer shall: (i) immediately, on behalf of the registrar, take custody of such person#8217;s license or right to operate issued by the commonwealth; (ii) provide to each person who refuses such test, on behalf of the essay lost love, registrar, a written notification of suspension in a format approved by the registrar; and. (iii) impound the dissertation deadlines, vehicle being driven by the operator and arrange for the vehicle to be impounded for a period of 12 hours after the operator#8217;s refusal, with the costs for the towing, storage and maintenance of the essay lost love, vehicle to be borne by the operator. The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. Deadlines? 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.

Each report shall set forth the grounds for the officer#8217;s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to submit to a chemical test or analysis when requested by book critics reviews, the officer to do so, such refusal having been witnessed by dissertation, another person other than the defendant. Each report shall identify the on bipedalism, police officer who requested the chemical test or analysis and the other person witnessing the refusal. Each report shall be sent forthwith to dissertation the registrar along with a copy of the notice of intent to malpractice essay suspend in a form, including electronic or otherwise, that the registrar deems appropriate. Dissertation? A license or right to operate which has been confiscated pursuant to this subparagraph shall be forwarded to the registrar forthwith. The report shall constitute prima facie evidence of the facts set forth therein at medical malpractice essay any administrative hearing regarding the suspension specified in this section.

The suspension of a license or right to operate shall become effective immediately upon receipt of the notification of suspension from the police officer. A suspension for a refusal of deadlines, either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to poisonwood bible essay 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 dissertation, the charges for the purpose of criticism essay, requesting the restoration of deadlines, said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the criticism essay, commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a person#8217;s blood alcohol percentage is dissertation not less than eight one-hundredths or the person is criticism essay under twenty-one years of age and dissertation, his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the following: (i) immediately and on behalf of the registrar take custody of such person#8217;s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the difference, test, on behalf of the 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 deadlines, perjury by the police officer. Poisonwood Essay? Each report shall set forth the grounds for the officer#8217;s belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of intoxicating liquor and deadlines, that the person#8217;s blood alcohol percentage was not less than .08 or that the person was under 21 years of malpractice essay, age at deadlines 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 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 public safety, that the equipment used for poisonwood bible essay, 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 dissertation 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 essay, receipt by the offender of the notice of intent to suspend from a police officer. The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and such evidence is that the percentage, by weight, of alcohol in the defendant#8217;s blood is two one-hundredths or greater and upon the failure of any police officer pursuant to this subparagraph, to suspend or take custody of the driver#8217;s license or permit issued by the commonwealth, and, in the absence of a complaint alleging a violation of paragraph (a) of subdivision (1) or a violation of section twenty-four G or twenty-four L, the registrar shall administratively suspend the defendant#8217;s license or right to operate a motor vehicle upon receipt of a report from the police officer who administered such chemical test or analysis of the dissertation, defendant#8217;s blood pursuant to poisonwood bible criticism essay subparagraph (1). Dissertation Deadlines? Each such report shall be made on a form approved by the registrar and shall be sworn to under the critics reviews, penalties of perjury by such police officer.

Each such report shall set forth the grounds for the officer#8217;s belief that the person arrested had been operating a motor vehicle on a way or place while under the dissertation, influence of intoxicating liquor and essay, that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the dissertation deadlines, test or analysis was trained and difference management essay, certified in the administration of deadlines, 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 on bipedalism, such test was regularly serviced and maintained, and that the person administering the test had every reason to believe that the equipment was functioning properly at the time the dissertation deadlines, test was administered. Each such report shall be endorsed by the police chief as defined in section one of chapter ninety C, or by bible criticism essay, the person authorized by him, and shall be sent to the registrar along with the confiscated license or permit not later than ten days from the date that such chemical test or analysis of the defendant#8217;s blood was administered. The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of dissertation deadlines, paragraph (f) shall, within fifteen days of suspension, be entitled to essay a hearing before the registrar which shall be limited to deadlines the following issues: (i) did the criticism essay, police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of dissertation deadlines, intoxicating liquor upon any way or in any place to which members of the public have a right of access or upon any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and criticism, (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the registrar finds on any one of the deadlines, said issues in the negative, the book critics, registrar shall forthwith reinstate such license, permit or right to operate. The registrar shall create and preserve a record at said hearing for judicial review. Dissertation? Within thirty days of the issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. Essay? The filing of a petition for judicial review shall not stay the revocation or suspension. The filing of a petition for judicial review shall be had as soon as possible following the submission of said request, but not later than thirty days following the submission thereof. Review by the court shall be on deadlines, the record established at the hearing before the registrar. Medical Essay? If the court finds that the department exceeded its constitutional or statutory authority, made an dissertation erroneous interpretation of the law, acted in poisonwood criticism, an arbitrary and deadlines, capricious manner, or made a determination which is unsupported by essay on bipedalism, the evidence in the record, the court may reverse the registrar#8217;s determination. Deadlines? [ Second paragraph of paragraph (g) of essay, 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 dissertation deadlines, paragraph (f) on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon difference management, such request shall be entitled to dissertation deadlines a hearing before the court in management essay, which the dissertation deadlines, underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by weight, of alcohol in difference management, such person#8217;s blood was less than eight one-hundredths or, relative to such person under the age of twenty-one was less than two one-hundredths. If the dissertation, 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 book, twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to deadlines forthwith notify the essay on bipedalism, criminal history systems board and dissertation, the registrar of such restoration. [ Second paragraph of medical essay, paragraph (g) of subdivision (1) as amended by 2010, 256, Sec. Deadlines? 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to hotel service operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of deadlines, chemical analysis of book reviews, his breath may within ten days of such suspension request a hearing and upon dissertation, 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 difference leadership management essay, age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to paragraph (e) within a reasonable period of dissertation, time after such chemical analysis of his breath, shows that the percentage, by weight, of bible, alcohol in such person#8217;s blood was less than eight one-hundredths or, relative to such person under the dissertation deadlines, age of twenty-one was less than two one-hundredths. If the essay lost love, court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person#8217;s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the dissertation deadlines, department of hotel service quality, criminal justice information services and the registrar of dissertation, such restoration. (h) Any person convicted of a violation of subparagraph (1) of paragraph (a) that involves operating a motor vehicle while under the influence of essay lost love, marihuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue, may, as part of the disposition in the case, be ordered to participate in a driver education program or a drug treatment or drug rehabilitation program, or any combination of said programs. The court shall set such financial and other terms for the participation of the defendant as it deems appropriate. [ First paragraph of paragraph (a) of subdivision (2) effective until September 30, 2010. For text effective September 30, 2010, see below.] (2) (a) Whoever upon any way or in any place to which the public has a right of access, or any place to which members of the public have access as invitees or licensees, operates a motor vehicle recklessly, or operates such a vehicle negligently so that the lives or safety of the public might be endangered, or upon a bet or wager or in a race, or whoever operates a motor vehicle for the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for deadlines, not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in the state prison for not more than five years or in a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and medical malpractice essay, whoever is found guilty of a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of dissertation, not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for essay on bipedalism, not less than two and one half years nor more than five years in the state prison or by both fine and dissertation, imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of essay on bipedalism, any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the deadlines, defendant will appear upon a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec.

11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to which the public has a right of poisonwood bible criticism essay, 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 deadlines, lives or safety of the public might be endangered, or upon book critics reviews, a bet or wager or in a race, or whoever operates a motor vehicle for dissertation, the purpose of making a record and thereby violates any provision of section seventeen or any regulation under section eighteen, or whoever without stopping and making known his name, residence and the register number of his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner#8217;s permit to operate motor vehicles to be used by any person, or whoever makes false statements in critics reviews, an application for such a license or learner#8217;s permit, or whoever knowingly makes any false statement in dissertation deadlines, an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to any other person, vehicle or property by operating said motor vehicle negligently so that the essay lost love, lives or safety of the public might be endangered, shall be punished by deadlines, a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for essay lost love, not less than two weeks nor more than two years, or both; and dissertation, whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than two years, or both, and for a second offense by imprisonment in book reviews, the state prison for not more than five years or in deadlines, a house of correction for not less than thirty days nor more than two and one half years, or by a fine of not more than one thousand dollars, or by both such fine and imprisonment; and whoever is found guilty of poisonwood criticism, a third or subsequent offense of such use without authority committed within five years of the dissertation, earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and one half years in a house of correction or for not less than two and one half years nor more than five years in the state prison or by both fine and imprisonment. A summons may be issued instead of a warrant for arrest upon a complaint for a violation of bible criticism essay, any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons. Deadlines? There shall be an assessment of book, $250 against a person who, by a court of the commonwealth, is convicted of, is placed on probation for or is granted a continuance without a finding for dissertation deadlines, or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the malpractice essay, public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by dissertation, the court with the criticism essay, 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. Dissertation? 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 malpractice essay, any way or in dissertation deadlines, any place to which the public has right of access, or upon any way or in any place to which members of the public shall have access as invitees or licensees, and without stopping and making known his name, residence and the registration number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person not resulting in the death of hotel service, 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 dissertation deadlines, public has a right of access or upon any way or in any place to which members of the public shall have access as invitees or licensees and essay on bipedalism, without stopping and making known his name, residence and the registration number of dissertation, 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 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 his sentence until such person has served at poisonwood essay least one year of such sentence; provided, however, that the commissioner of correction may on the recommendation of the warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to deadlines 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 criticism essay, 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 a work release program. (3) Prosecutions commenced under subparagraph (1) or (2) shall not be continued without a finding nor placed on deadlines, file. (b) A conviction of a violation of paragraph (a) or paragraph (a1/2) of subdivision (2) of essay lost love, this section shall be reported forthwith by dissertation, the court or magistrate to essay the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and deadlines, no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to hotel thesis operate. If it appears by the records of the registrar that the dissertation deadlines, person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the registrar may revoke the certificate of registration of essay lost love, any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to operate of any person under paragraph (b), in his discretion may issue a new license or reinstate the right to operate to him, if the prosecution has terminated in favor of the defendant.

In addition, the registrar may, after an investigation or upon hearing, issue a new license or reinstate the right to operate to 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 dissertation deadlines, subparagraph (1) of essay, paragraph (a1/2) until one year after the dissertation deadlines, date of revocation following his conviction if for a first offense, or until two years after the date of on bipedalism, revocation following any subsequent conviction; (ii) any person convicted of a violation of subparagraph (2) of dissertation deadlines, paragraph (a1/2) until three years after the date of revocation following his conviction if for a first offense or until ten years after the date of revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of essay on bipedalism, 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 dissertation deadlines, date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of book critics reviews, paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of revocation following any subsequent conviction within a period of three years. Notwithstanding the forgoing, a person holding a junior operator#8217;s license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for dissertation, license reinstatement until 180 days after the date of his original conviction for a first offense or 1 year after the date of revocation following a subsequent conviction within a period of 3 years. The registrar, after investigation, may at any time rescind the difference leadership essay, 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 access or any place to which members of the dissertation deadlines, public have access as invitees or licensees negligently so that the lives or safety of the public might be endangered. Medical Essay? The provisions of this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of section fifty-eight B of chapter one hundred and nineteen. (3) The prosecution of any person for the violation of any provision of this section, if a subsequent offence, shall not, unless the interests of justice require such disposition, be placed on file or otherwise disposed of except by deadlines, trial, judgment and sentence according to the regular course of criminal proceedings; and medical, such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the dissertation, reasons therefor and verified by affidavits if facts are relied upon. If the court or magistrate certifies in writing that he is satisfied that the reasons relied upon are sufficient and malpractice essay, that the dissertation, interests of essay, justice require the allowance of the motion, the motion shall be allowed and the certificate shall be filed in the case. A copy of the motion and certificate shall be sent by the court or magistrate forthwith to the registrar. (4) In any prosecution commenced pursuant to dissertation this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by bible criticism essay, 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 dissertation, a court of the critics reviews, commonwealth one or more times preceding the date of commission of the dissertation, offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of difference leadership, guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003. MEMORANDUM AND ORDER ON DEFENDANT#8217;S MOTION FOR RELIEF UNDER MASS.

R. Dissertation Deadlines? CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Before me is the service thesis, defendant#8217;s motion, under Mass. Dissertation Deadlines? R. Crim. P. Essay Lost Love? 25(b)(2), for dissertation deadlines, (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of essay, misdemeanor vehicular homicide on ground of operating to endanger. For the reasons that follow, the defendant#8217;s motion is dissertation deadlines DENIED. At about 1:00 p.m. on on bipedalism, September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on or beside Farmers Row (Route 111), Groton, when he was struck head-on by a pickup truck traveling in the opposite direction.

The truck was driven by the defendant, who was then on her way from her home in Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. The defendant was subsequently charged with operating under the dissertation, influence, operating to endanger, and felony motor vehicle homicide.1. Malpractice Essay? It was the Commonwealth#8217;s theory of the case that the deadlines, defendant, who had been prescribed a number of medications including diazepam (Valium), lorazepam (Ativan), and oxycodone (Percocet), was under the influence of at least one, and essay on bipedalism, that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. The jury evidently agreed, and convicted the defendant of dissertation deadlines, each of the quality, charges against her.

The verdict of felony motor vehicle homicide (G.L. c. 90, §24G) required findings by the jury both that the dissertation deadlines, defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and hotel quality thesis, that she was under the influence of an intoxicating substance (on the Commonwealth#8217;s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of these findings is therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Deadlines? Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of essay lost love, two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and deadlines, Wilson G. Dobson, P.E., called by the defendant. Quality? No lengthy review of deadlines, either expert#8217;s testimony is necessary here, except to say that Trooper Alvino opined, based on the physical evidence which she reviewed the afternoon of the crash and on methods and formulae commonly used in accident reconstruction, that the point of impact was well onto the sidewalk immediately adjacent to the defendant#8217;s lane of travel, and essay lost love, that the truck therefore must have left the deadlines, roadway and traveled on the sidewalk.2 Mr. Dobson opined that the medical malpractice essay, physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the location of the impact. The Commonwealth#8217;s evidence, while it may not have compelled a finding of negligence, certainly warranted it.

The jury#8217;s verdict on this point was adequately supported by the evidence. B. Operating Under the Influence. The #8220;operating under#8221; element of the OUI (G.L. c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for deadlines, a conviction, that the defendant have been operating her motor vehicle #8220;while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. c. Malpractice Essay? 94C, §1], or the vapors of glue.#8221; As noted above, the Commonwealth contended that the defendant was under the influence of dissertation deadlines, one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the #8220;scheduled medications#8221;). The first two are depressants; the last, a narcotic.3. Criticism? There was no direct evidence as to when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to the #8220;operating under#8221; element was as follows. 1. CVS Pharmacy records.

CVS Pharmacy records for the period May 26, 2001 and dissertation, 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 latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the OUI and vehicular homicide statutes.

Even if the defendant were impaired by book critics reviews, one or more of these medications, therefore, she would not have been #8220;operating under the dissertation, influence#8221; within the meaning of these statutes, unless she was also impaired by medical malpractice, one or more of the scheduled medications. 2. Testimony of dissertation deadlines, Dr. Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on on bipedalism, August 29 was written by Dr. Andrew Abela. Dr.

Abela, a dentist, testified that on August 24, 2001, while the defendant was a psychiatric inpatient at Emerson Hospital, she made an emergency visit to his office for tooth pain. Deadlines? He extracted a lower molar, and gave her the oxycodone prescription at essay lost love that time. His practice is to dissertation deadlines recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to control pain; and on bipedalism, that they should not drive if they have taken a narcotic because it can cause drowsiness. He further testified that patients who have had a tooth extracted sometimes experience #8220;dry socket#8221; three to five days after the procedure, which can cause pain to flare up at that time. Extraction of a lower tooth, and smoking following the procedure (the defendant is a smoker), both place the patient at deadlines increased risk for dry socket.

3. Package Warnings. The CVS records included copies of the #8220;monographs#8221; that CVS, when filling a prescription, produces and staples to the bag containing the pill bottle. The monograph sets forth patient information in medical malpractice, paragraphs headed #8220;USES,#8221; HOW TO USE,#8221; SIDE EFFECTS,#8221; PRECAUTIONS,#8221; DRUG INTERACTIONS,#8221; OVERDOSE,#8221; NOTES,#8221; MISSED DOSE,#8221; and #8220;STORAGE.#8221; Each monograph is dissertation deadlines lengthy (about half of an malpractice essay 8? ? 11 page of fairly small type). The following are excerpts from the monographs for dissertation, the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and critics, dizziness. Avoid tasks requiring alertness. Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. #8230; SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of deadlines, these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising. If you notice other effects not listed above, contact your doctor or pharmacist.

PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness. #8230; 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. Hotel Service Quality? Tell your doctor immediately if you have any of these unlikely but serious side effects: loss of deadlines, coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. #8230;. PRECAUTIONS: #8230; Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Evidence as to Therapeutic and essay, Side Effects. As outlined below, with the exception of dissertation deadlines, oxycodone (a narcotic pain medication), the other scheduled and the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia.

In recorded statements she gave to the police on September 2 and 6, 2001 (both of which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from post-traumatic stress disorder; and had twice attempted suicide (most recently on essay on bipedalism, August 21, which had resulted in her admission to Emerson Hospital#8217;s 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. Dissertation Deadlines? The Commonwealth#8217;s medical expert (Dr. Brower) testified concerning the indications, action, and side effects of the medications the defendant had been prescribed. Of the scheduled medications: 1. Oxycodone (Percocet) is a narcotic analgesic, derived from the opium plant and used for moderate to severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness. • Diazepam (Valium) is an hotel service thesis a benzodiazepine prescribed for anxiety and sometimes for insomnia. It metabolizes, and affects the brain, quickly after ingestion (peak effect occurring in an hour), but because its metabolites have similar effects and accumulate with repeated dosing, chronic use can produce longer-lasting effects after each dose. Side effects, which can occur in therapeutic doses, include: impairment of cognitive and motor functions, especially fine motor coordination; confusion and problems with thinking; drowsiness and lassitude; dizziness, lightheadedness, and poor coordination.

• Lorazepam (Ativan) is another benzodiazepine with indications and effects similar to dissertation diazepam, but slower-acting and with longer-lasting effects. Side effects, which can occur in essay, therapeutic doses, include impairment and slowing down of mental and dissertation deadlines, motor functions, and drowsiness. A single dose can affect the patient for up to 24 hours. Two milligrams is the maximum dose normally prescribed, and essay on bipedalism, is a sedating dose. Of the non-scheduled drugs that the dissertation, plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed #8220;off label#8221; to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. Essay Lost Love? • 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 side effects may decrease with prolonged, regular use, but this is less likely with prolonged #8220;PRN#8221; (as needed) use. The other three medications take longer — 2 to 4 weeks — to be effective, and their side effects normally abate over time. Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealth#8217;s view of how the accident happened (i.e., that the dissertation, truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to an emergency erratically or at the last minute, are consistent with the essay, effects of the three scheduled drugs.

There could be other causes as well (and patients vary in the severity of their reactions to these and other drugs), but any or all of the dissertation, scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and book critics reviews, (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the scheduled drugs. 5. Defendant#8217;s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the dissertation, medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on the scene just after the accident and helped the poisonwood bible, plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him #8220;quite a few bottles#8221;; and that he overheard her tell an EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to dissertation deadlines have been the EMT to whom Alcantara referred, testified (with the aid of difference leadership management, his report) that the defendant told him she was on Effexor, Topamax, Ativan, and Zyprexa.

3. Arthur Ragusa was a nurse at the Deaconess Nashoba Hospital (now the Nashoba Valley Medical Center). His record notes, among the defendant#8217;s #8220;current medications,#8221; percocet and valium #8220;PRN#8221; (i.e., as needed). This was in response to the question he asks every patient,#8221; What medications are you currently taking?#8221; 4. In her September 2, 2001 and September 6, 2001 recorded statements to 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 dissertation, of the house, for two weeks prior to the accident (excepting her stay on a locked floor at Emerson Hospital).

She listed, and displayed bottles of, Topamax, Zyprexa, Effexor, Nestabs (a vitamin), and iron. She stated that she takes these as prescribed — Effexor twice a day, Zyprexa once a day, and essay lost love, Topomax (#8220;I take two#8221;) — and that #8220;If I went without them, I#8217;d be a fruit loop.#8221;5 She took her Effexor shortly before leaving the house the day of the accident. She said that the packaging for Topamax, Zyprexa, and deadlines, 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. Bible Criticism? Descriptions of the Defendant#8217;s Affect. Five witnesses testified as to the defendant#8217;s affect, as it bore on the question of possible impairment from drugs. 1. Dissertation? Blumenthal testified that as far as he could tell, the defendant was not #8220;grossly#8221; affected by drugs or alcohol. 2. Melissa Heys, a nurse with the nearby Groton School, came on 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 focus, oriented, unimpaired in speech, and thesis, able to follow the dissertation, directions of the EMTs. 3. Steven Mickle, with the book critics, Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and dissertation deadlines, able to follow instructions and to respond to his questions. 4. Dr. Service Quality Thesis? Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and oriented #8220;times 3#8243; (i.e., oriented to person, place and time).

His bedside neurological exam showed no focal deficits and no signs of intoxication; #8220;There was nothing about her that made me think she was under the dissertation, influence.#8221; He therefore saw no indication for hotel service quality thesis, performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to taking Ativan and dissertation deadlines, Percocet, the presence of these substances in a blood or urine sample would have been uninformative).6. 5. On the other hand, Officer Hatch, a Groton Police officer (since retired) who was among the first responders, testified that he saw the difference leadership, defendant at the scene; that he has known her since she was a little girl; and deadlines, that in his opinion, she was under the influence of something. Reviews? He smelled no alcohol and there was#8221; nothing I could put my finger on,#8221; but he did notice that she was unusually subdued, not #8220;bubbly#8221; as she normally was.7 He also testified that the dissertation, defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist. He went to the hospital where she was taken, where she said she had swerved to the right to poisonwood bible criticism avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to dissertation deadlines the left; she said she did not. 7. Erratic Driving. On Bipedalism? There was also the evidence of the dissertation deadlines, defendant#8217;s erratic driving the day of the accident. As mentioned above, there was evidence from which the essay lost love, jury could have concluded that the accident occurred when defendant#8217;s vehicle left her lane of travel and swerved onto the sidewalk, into the path of the oncoming bicyclist, for no apparent reason: the dissertation, pavement was dry; the weather was clear; she was heading north and not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and the jury could have discredited her statements both that she swerved right to avoid cars and that she swerved left to avoid the bicyclist. There was also testimony from two witnesses who, the jury could have found, encountered the malpractice essay, plaintiff minutes before the accident, between a mile and two away. The defendant was coming from her home in Ayer, northbound on Route 111 (known as Groton School Road in Ayer and deadlines, Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend#8217;s house on the way). George Krusen and Barry Curcio, who were driving together south on book critics reviews, Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at a high rate of dissertation deadlines, speed in the opposite malpractice essay, (northbound) lane.

As they and the truck approached one another at a curve in dissertation, the road, the truck swerved into their lane and essay lost love, beyond, into the dirt by the (wrong) side of the road. It did not slow down, and was in their lane for several seconds before veering back into the correct lane of travel. Krusen, who was driving, slowed down and avoided a collision by just a foot or two. In her September 6 statement to the police, the defendant stated that the only significant event on her drive from dissertation deadlines Ayer to Groton was that her sandal #8220;fell off once#8221; in the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but #8220;then that was fine.#8221; Both men generally described the truck and driver,8 and both, at the request of the Groton police, viewed the truck after the accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the truck in the garage was the one he had seen on Groton School Road. Curcio, on the hand, testified that he was positive that it was the same truck. The time, place, and thesis, descriptions of the encounter were such that the jury would have been warranted in concluding that the driver was the dissertation, defendant, and that her near-miss with the criticism, Krusen-Curzio vehicle took place just before the dissertation deadlines, accident with Evan Holofcener.9. A. Renewed Motion for Required Finding.

The defendant moved for a directed finding at hotel service quality the close of the Commonwealth#8217;s case. Deadlines? At that point, as required, I reviewed #8220;whether the poisonwood bible criticism, evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to permit the submission of the case to the #8230; jury, to deadlines decide the innocence or guilt of the poisonwood bible criticism essay, accused.#8221; Commonwealth v. Latimore, 378 Mass. Dissertation? 671, 676 (1979). I determined that although the criticism, evidence that the dissertation, defendant was under the influence of on bipedalism, any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the case to the jury. The defendant has now renewed her motion, requiring me (a) to look again at whether the Commonwealth#8217;s case was sufficient, and (b) #8220;to determine whether the Commonwealth#8217;s position as to proof had deteriorated since it had closed its case.#8221; Commonwealth v. Basch, 386 Mass. 620, 622 n. Dissertation Deadlines? 2 (1982). Both determinations require that I view the evidence in the light most favorable to the Commonwealth. Poisonwood Bible Essay? Latimore, 378 Mass. at deadlines 677-78; Commonwealth v. Torres, 24 Mass. App. Ct.

317, 323-24 (1987). #8220;[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. #8230; [The] question is essay lost love whether after viewing the dissertation deadlines, evidence in the light most favorable to the prosecution, any rational trier of leadership management essay, fact could have found the essential elements of the crime beyond a reasonable doubt.#8221; Thus, to sustain the deadlines, denial of a directed verdict, it is not enough #8230; 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 difference leadership management essay, each such element beyond a reasonable doubt. Latimore, 378 Mass. at dissertation 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and service quality, Commonwealth v. Dissertation? Doucette, 408 Mass. Medical Malpractice Essay? 454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge#8217;s review of motion for directed finding). As noted above, in the discussion of the facts, Trooper Alvino#8217;s testimony placed the defendant#8217;s 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 road, traffic, weather, or lighting conditions. Dissertation Deadlines? This was sufficient to convict for operating to endanger. See, e.g., Commonwealth v. Siciliano, 420 Mass. 303, 307-08 (1995) (#8220;evidence that the defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and book reviews, forth across the roadway, and nearly struck a traffic island#8221; was sufficient); Commonwealth v. Dissertation? Bergeron, 398 Mass.

338, 340 (1986) (a finding of ordinary negligence suffices for the operating to endanger element of vehicular homicide); Commonwealth v. Essay Lost Love? Vartanian, 251 Mass. 355, 358 (1925) (presence of people is a relevant factor when considering whether defendant operated vehicle to deadlines endanger). Eyewitness evidence as to the operation of the truck before the accident was not required. See, e.g., Commonwealth v. Difference Leadership? 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 prove beyond a reasonable doubt that one or more of the scheduled medications, through its effect on dissertation, the defendant#8217;s #8220;judgment, alertness, and essay, ability to respond promptly and effectively to unexpected emergencies,#8221; diminished her #8220;ability to operate a motor vehicle safely.#8221;10 Commonwealth v. Dissertation? Connolly, 394 Mass. 169, 174 (1985). A scheduled medication need not have been the sole or exclusive cause of the defendant#8217;s diminished ability to drive safely, so long as is was a contributor. #8220;It is enough if the defendant#8217;s capacity to operate a motor vehicle is diminished because of [a substance listed in the statute], even though other, concurrent causes contribute to that diminished capacity.#8221; Commonwealth v. Stathopoulos, 401 Mass. Malpractice? 453, 457 (1988). From the evidence summarized above, the jury could have concluded: 1. That the defendant had been prescribed, had purchased, and thus had access to the three controlled medications; 2. That her pattern of deadlines, filling the prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of essay, 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 dissertation deadlines, 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. Bible Criticism Essay? That the steadily diminishing list of medications given by the plaintiff following the accident — and the omission of the three controlled medications in her statements to the police — indicated a consciousness of guilt, further bolstering the dissertation, other circumstantial evidence of bible criticism, intoxication; 6. That the evidence of the defendant#8217;s erratic and dangerous driving, on two occasions11 separate but close in time and location, and the lack of any reasonable explanation for either, was evidence of impairment due to intoxication; 7. That the fact that the defendant was under the dissertation deadlines, influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant#8217;s affect after the accident to detect impairment; 8. That the description of the defendant#8217;s affect by hotel service, Officer Hatch, who had known her for most of her life, was consistent with the sedating effects of deadlines, all three controlled medications; and. 9. Poisonwood Criticism? That the plaintiff was adequately advised of the deadlines, sedating and medical, impairing effects of dissertation deadlines, he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass.

App. Medical Malpractice? Ct. 713 (2002) and Commonwealth v. Wallace, 14 Mass. App. Dissertation? Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the controlled medications recently enough to essay lost love be impaired by them, and it lacked direct evidence of deadlines, what concentrations she had of any of them. Even the direct evidence of signs of intoxication in the defendant#8217;s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to conclude that the defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the dangers of the controlled medications, both medically and essay lost love, (by the time she spoke to the police) legally as well; and dissertation deadlines, that her erratic and essay, 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. Deadlines? #8230; However, circumstantial evidence is competent to hotel service thesis establish guilt beyond a reasonable doubt.

An inference drawn from deadlines circumstantial evidence #8220;need only reviews be reasonable and possible; it need not be necessary or inescapable.#8221; Moreover, the evidence and the permissible inferences therefrom need only be sufficient to persuade #8220;minds of dissertation, ordinary intelligence and sagacity#8221; of the defendant#8217;s guilt. Fact finders are not #8220;required to essay lost love 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 dissertation, their experience as to the natural inclinations of human beings.#8221; To the extent that conflicting inferences are possible from the evidence, it is for the fact finder to resolve the conflict. Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Essay On Bipedalism? Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows: Motion After Discharge of dissertation, Jury. If the motion [for a required finding of book critics, 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 dissertation returned, the essay lost love, judge may on motion set aside the dissertation, verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a finding of guilty of any offense included in essay lost love, the offense charged in the indictment or complaint. The Rule incorporates the statutory authority conferred by G.L. c. 278, §11. In a recent (and celebrated) discussion of this authority, the SJC noted, The authority of the trial judge under rule 25(b)(2) to reduce the dissertation, 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 essay, appellate levels reflect the evolution of legislative policy promoting judicial responsibility to ensure that the result in every criminal case is dissertation deadlines consonant with justice. It is essay on bipedalism clear that the responsibility may be exercised by the trial judge, even if the evidence warrants the deadlines, jury#8217;s verdict. #8220;[A] new trial or verdict reduction may be proper even when the evidence can legally support the essay on bipedalism, jury#8217;s verdict.#8221; The judge#8217;s option to reduce a verdict offers a means to rectify a disproportionate verdict, among other reasons, short of dissertation deadlines, granting a new trial. The judge#8217;s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge#8217;s own error, or #8230; the interaction of hotel thesis, several causes. Commonwealth v. Woodward, 427 Mass. 659, 666-67 (1998). As the trial judge in Woodward put it, a judge#8217;s exercise of the Rule#8217;s authority to deadlines 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 #8230;. The facts, as well as the law, are open to consideration. Commonwealth v. Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to book critics reviews prudential limitations. The SJC added, to dissertation what has been quoted above from the Woodward opinion, that #8220;[b]ecause such broad postconviction authority is vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.#8221; Id. at 667, citing Commonwealth v. Keough, 385 Mass.

314, 321 (1982) (trial judge #8220;should not sit as a `second jury#8217;#8221;); see also Commonwealth v. Carter, 423 Mass. Poisonwood Bible? 506, 512 (1996) (judge hearing motion to reduce verdict #8220;is not to play the role of thirteenth juror#8221; or to #8220;second guess the dissertation, jury#8221;). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to walk the #8220;fine line[s]#8221; between the forms of malice required for the various degrees of essay lost love, homicide.12 427 Mass. at dissertation deadlines 669. The defendant offers two reasons for a reduction of the verdict in this case, from felony to misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to hotel quality operating to endanger): 1. The lack of any direct evidence, or of overwhelmingly compelling circumstantial evidence, that the defendant ingested any of the controlled medications during a relevant time period; or that she exhibited signs of dissertation, intoxication on book critics, the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of dissertation deadlines, any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in part, as an argument for #8220;involuntary intoxication#8221;). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the defendant characterizes it, #8220;slim,#8221; at least in the sense that there was no single piece of hotel service quality, evidence of which one could say that if accepted as true, it virtually compelled a finding of intoxication by dissertation, 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 essay on bipedalism medicine or from pharmacology, but from physics and accident reconstruction.

If one accepts the conclusion of Trooper Alvino that the truck was on the sidewalk at the point of dissertation deadlines, impact — which the jury were not required but were entitled to do — there might be a variety of explanations for it, but the only one to be found anywhere in leadership essay, the evidence is that of deadlines, intoxication. If one also accepts the testimony of Krusen and Curcio (including the identification furnished by the latter) — as the jury were also entitled to do — this showed a chain of events of some duration, likewise consistent with intoxication and begging alternative explanation in the evidence. A loose sandal might explain the Krusen-Curcio incident alone — though even this is undercut by the defendant#8217;s disclaimer of any problem resulting from it — but it does little to explain a course of reckless driving, which endangered two lives and took a third, and which persisted or was repeated over the course of several minutes and several miles. When combined with evidence of the defendant#8217;s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch#8217;s description of medical essay, her affect after the dissertation deadlines, 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 most often exercised in essay, order to navigate the murky — and notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and fairness, requires a jury#8217;s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is necessary, in all cases but especially in these. In this case, however, the central issue — whether or not the defendant#8217;s ability to perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. Dissertation Deadlines? Its determination on the evidence presented in this case was not a simple or an easy task, to be sure, but there is no reason to suppose that it was beyond the reviews, ability of the jury. That evidence, if necessarily circumstantial and deadlines, incomplete, was nonetheless substantial in its quantity and its overall quality.

Trial presentations for both sides were excellent. I do not think the jury#8217;s verdict represented a miscarriage of justice. The defendant#8217;s final argument — that medications taken as prescribed cannot be the basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. c. 90, §§24 and 24G make criminal. Her argument to essay on bipedalism the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendant#8217;s mental illness, or her therapy. The offense is operating under the influence. What is forbidden is not taking medications as prescribed; it is getting behind the wheel of dissertation deadlines, 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 book critics, 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 dissertation, some drugs is precisely the book critics, reason a prescription is required). The statute aims to keep the impaired driver off the dissertation, road in either case.

While there are undoubtedly degrees of culpability to difference essay be reckoned with, these are best addressed — and will be addressed in this case — in dissertation deadlines, sentencing. For the foregoing reasons, the defendant#8217;s Motion for Relief Pursuant to Mass. R. Crim. P. 25(b)(2) is DENIED. Hotel Service Thesis? The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. Deadlines? A conviction for felony vehicular homicide requires findings both that the malpractice essay, defendant was operating under the influence, and that she was operating to endanger(and that her operation caused the death of another).

Misdemeanor vehicular homicide requires a finding either of dissertation, operating under or operating to endanger, resulting in essay, death. Both operating under and operating to endanger are therefore lesser included offenses in relation to felony vehicular homicide. Dissertation? 2. Difference Leadership? The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass. 54 (1994), of Trooper Alvino#8217;s testimony. It was my assessment that the scientific methods employed, and their application to this case, were sufficiently reliable to warrant admission of Trooper Alvino#8217;s testimony. 3. With respect to dissertation deadlines diazepam and lorazepam, I took judicial notice (and so advised the on bipedalism, jury), at the Commonwealth#8217;s request, that these are #8220;depressants,#8221; because they appear on the attorney general#8217;s list of controlled substances, incorporated by reference into c. 94C, §1 and thereby into deadlines c. 90, §§24(a) and 24G(a). Oxycodone#8217;s status as a narcotic was established by the testimony of the Commonwealth#8217;s medical expert, Dr. Brower. 4. Dr. Abela asks his patients whether they have has a satisfactory experience with either or these medications.

Usually, he prescribes Vicodin, but if the patient says that Percocet has worked well for her, he will prescribe Percocet. Essay Lost Love? 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 #8220;out of it#8221; and to sleep a lot, but that #8220;now they have no effect on me, and I#8217;m fine.#8221; In testimony that I excluded (after first asking if the defendant wished to waive the privilege which she had successfully asserted to deadlines exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that #8220;the doctor said that it was completely fine for me to critics be driving on them, because I asked him yesterday #8230; and he said it was fine. Dissertation Deadlines? He said they have no effect on your driving.#8221; 6. Dr. Balser and the police witnesses were in book, agreement that the decision whether or not to test for intoxication is a medical one, made by dissertation, the physician and not under the service thesis, direction of law enforcement. 7. Dissertation? This description of the defendant#8217;s affect could be interpreted as at least generally consistent with the description, given by Dr. Brower, of the calming and sedating effects of lorazepam and diazepam. Essay Lost Love? The jury might also have concluded, reasonably, that the deadlines, 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 reviews indeterminate color, possible two-toned, driven by deadlines, a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to him, and book critics, difficult to describe beyond a #8220;very dark green with something mixed in#8221;; the driver was a female, in her late teens or early 20s, with shoulder-length brown hair and looking #8220;intense.#8221; 9. Dissertation? The jury were instructed that the essay lost love, charges against the defendant all pertained to the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10. At the defendant#8217;s request, and over the Commonwealth#8217;s energetically pressed objection, I gave the jury a #8220;specific unanimity#8221; instruction, requiring that they agree on which of the three scheduled medications (if any) had impaired the defendant#8217;s ability to drive. #8220;[W]hen the deadlines, Commonwealth introduces at essay on bipedalism trial evidence of alternate incidents that could support the deadlines, charge against the defendant, the essay, jury must unanimously agree on which specific act constitutes the offense charged.#8221; Commonwealth v. Kirkpatrick, 423 Mass.

436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Here, there was evidence of ingestion of multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle. Massachusetts law is less than clear (to this judge at least) as to whether a specific unanimity instruction was required in a case such as this. 11. The jury could reasonably have credited Curcio#8217;s identification of the truck, and attributed Krusen#8217;s failure to identify it to dissertation deadlines the fact that he had been the driver, and therefore, preoccupied. 12. Essay Lost Love? The SJC noted in Woodward, #8220;Since 1979, the dissertation deadlines, Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.#8221; 427 Mass. at 667. Eight of book critics, these cases (cited in note 12 to that opinion) were homicides; the other two were drug cases, in which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the influence of alcohol and operating a motor vehicle under a suspended license.

57 Mass. App. Ct. 80. Appeals Court of dissertation, Massachusetts, Suffolk. Argued February 7, 2002. Essay? Decided January 15, 2003. COPYRIGHT MATERIAL OMITTED. Esther J. Dissertation Deadlines? Horwich, Boston, for the defendant. Jeremy C. Bucci, Assistant District Attorney, for essay, the Commonwealth.

Present: GELINAS, CYPHER, #038; KANTROWITZ, JJ. The defendant appeals from the revocation of his probation, based on dissertation deadlines, evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on essay on bipedalism, November 16, 1999, in Brighton District Court, after the defendant admitted to deadlines sufficient facts to warrant a finding of guilty on a charge of operating a motor vehicle under a suspended license. Medical? The judge continued the case without a finding and placed the defendant under the supervision of a probation officer on terms that, among others, required that he #8220;obey all court orders and local, [S]tate and [F]ederal laws#8221; until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on dissertation, his way home from a football game.

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 operating a motor vehicle under a suspended license. The new offense triggered the issuance of a written notice of a probation violation from the Brighton District Court, stating the defendant was not in compliance with the terms of his probation because of the new complaint. After a hearing on March 3, 2000, the judge found that the defendant had violated the terms of his probation on the basis of his admission to the Mashpee police during his arrest that he had driven his car earlier in the day. The judge entered a guilty finding,1 and modified the terms of probation by extending the probationary period to one year from the date of the leadership, hearing and imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the dissertation, entry of a guilty finding and the order modifying the terms of his probation should be reversed because (1) the grounds stated as the essay lost love, reason for revoking his probation were different from dissertation deadlines those for which he had received written notification; (2) the defendant#8217;s admission was unreliable, because the difference leadership essay, police officer who testified was unsure of the exact statement, and because it was contradicted by other information contained in the police reports; (3) the admission was insufficient, as a matter of law, to deadlines 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 book reviews, 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 dissertation deadlines steer his police cruiser to the right in order to essay lost love 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 see who was driving or how many people were in the vehicle.

He turned his cruiser around and headed southbound on Route 130 in dissertation deadlines, search of the difference essay, vehicle. Deadlines? Read found it parked at the side of the road. Read observed the defendant standing toward the back of the vehicle, on the driver#8217;s side. Read stopped, exited, and walked toward the leadership management essay, 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 driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant#8217;s son-in-law, emerged from the woods by the side of the road, where he apparently had been urinating. Read asked both the defendant and dissertation, Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in hotel quality, the rear of the vehicle.

Read determined that the defendant was the deadlines, owner of the vehicle. Read determined that both the defendant and Crosby were under the influence of alcohol, and placed both in protective custody. Officer Paul Coronella was called and arrived at the scene. The defendant was placed in the rear of book reviews, Coronella#8217;s police car and Crosby was placed in the rear of dissertation, Read#8217;s police car, both for transportation to the police station. En route to the station, Crosby had a conversation with Read in which Crosby stated that the defendant was the driver. When Read arrived at medical malpractice the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the deadlines, driver. Read obtained a signed, written statement from difference leadership management Crosby that the defendant was the driver. After conducting sobriety tests, which he said the defendant failed, Coronella placed the defendant under arrest for operating the motor vehicle on Route 130 while under the deadlines, influence of intoxicating liquor.

A breathalyzer test revealed the defendant to poisonwood bible have a blood alcohol reading of .16. Officer Sean Sullivan, who had been called to deadlines inventory the contents of the medical, defendant#8217;s vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and dissertation, Crosby #8220;exhibited extreme symptoms of intoxication.#8221; Coronella#8217;s report of the booking procedure stated that the defendant was read and understood his Miranda rights. Quality Thesis? Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella#8217;s and Read#8217;s reports, after the booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella#8217;s and Read#8217;s reports explain that the defendant answered that he drove from dissertation deadlines his house in Brockton to his son-in-law#8217;s, Crosby#8217;s, home in East Bridgewater. Crosby then drove the defendant#8217;s vehicle to the game.

When pressed on poisonwood bible criticism essay, this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby#8217;s house, but acknowledged that it was #8220;possible#8221; the defendant had made such a comment. The judge did not credit Crosby#8217;s statement, as related by Officer Read, that the dissertation, defendant had been driving the vehicle at leadership the time it was stopped. Rather, the judge credited the defendant#8217;s admission, as reported by Coronella and dissertation, Read, that he had driven from hotel service thesis his house to Crosby#8217;s house, the first leg of the trip to the football game.4. On these facts, the defendant raises several issues implicating due process; we find no merit to his contentions and dissertation deadlines, we affirm. Written Notification. Leadership Management? The defendant first argues that the written notice of surrender referenced only the two charges for which he was arrested by dissertation, the Mashpee police, and contained no reference to poisonwood bible the uncharged misconduct that occurred earlier in the day, when he drove from dissertation his home to Crosby#8217;s home under a suspended license.

The issue was first raised in the defendant#8217;s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to the two charges filed in bible, connection with the incident that occurred on Route 130, and dissertation deadlines, that the notice of violation of probation did not include mention of his operating the motor vehicle on a public way earlier in the day.5 The Commonwealth appears to concede that, because of lack of notice, the earlier operation cannot form the basis of the instant revocation. We disagree.6. While there can be no doubt that written notice of the claimed violations are included among the #8220;minimum requirements of due process,#8221; Commonwealth v. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is reviews not an inflexible concept. Ibid. Flexibility is important both to deadlines insure the offender the opportunity inherent in the grant of conditional liberty that probation affords, and to insure the Commonwealth the ability to deal expeditiously with a violation of 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 written notice did not specifically state the poisonwood essay, basis upon which the judge based the revocation. The defendant#8217;s admission, however, of having driven the vehicle earlier in dissertation deadlines, the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. In any event, assuming that the failure to specifically enumerate the misconduct on the face of the 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 book reviews, defendant#8217;s 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 dissertation deadlines, a possible disposition, counsel told the judge the following: #8220;There is a second matter of operating after a suspended license. And there are two incidents of operation, one of which I understand my client is accused of admitting that he did.

I#8217;m not saying that is his position, but in the police report it indicates something to that effect. #8220;If we could just go forward with regard to essay that issue and not stipulate to dissertation deadlines the OUI, it would still be a technical violation.#8221; (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in on bipedalism, vigorous cross-examination of the deadlines, officer with regard to the defendant#8217;s statement that he had driven the car earlier in quality thesis, the day, and went so far as to elicit a statement from the dissertation deadlines, officer that the defendant might also have told him that a family member, rather than the defendant, drove the car to Crosby#8217;s house. Counsel was amply prepared at the start of the hearing to consider the issue of the defendant#8217;s admitting to the first occasion of driving after suspension of his license. Leadership Essay? 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 his claim of dissertation, error. See Delisle v. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. 28, 31-32, 489 N.E.2d 674 (1986). Compare Commonwealth v. Critics Reviews? Streeter, 50 Mass.App.Ct. 128, 131-132, 735 N.E.2d 403 (2000).

Exclusion of the evidence. Deadlines? The defendant next contends that his admission to police that he had been driving earlier in the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to his state of essay lost love, intoxication; (b) again due to his state of intoxication, the deadlines, statement was not made voluntarily for hotel thesis, the purposes of the Fifth and deadlines, Fourteenth Amendments to the United States Constitution and art. Medical Essay? 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 dissertation deadlines, probation surrender, since it lacked corroborative evidence and was contradicted by information contained in leadership, the police reports. We disagree with all three contentions. (a) Miranda issue. Deadlines? Contrary to on bipedalism the defendant#8217;s contention, the dissertation deadlines, evidence adduced at hotel quality thesis the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the basis of the violation. Dissertation? The record shows that the essay lost love, conversation reported by Coronella, in which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read#8217;s testimony at the hearing supports this version of events.8.

Moreover, even were we to agree that the defendant#8217;s admission was obtained prior to his being given his Miranda rights, the deadlines, statements were admissible. Following the rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct. Difference Leadership Essay? 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of dissertation deadlines, evidence obtained in violation of the Fourth Amendment, the medical malpractice, Supreme Judicial Court, in Commonwealth v. Vincente, 405 Mass. 278, 279-281, 540 N.E.2d 669 (1989), ruled that, even though certain statements made by a defendant were properly suppressed at trial as having been obtained in violation of the deadlines, defendant#8217;s Miranda rights, those same inculpatory statements, perhaps subject to certain considerations not present here, might properly provide the basis for a probation surrender. Where, as here, the primary focus of the police inquiry, including the arrest of the defendant and essay lost love, Crosby for reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to dissertation deadlines prosecute the incident of driving under the influence, the exclusion at a probation revocation hearing of the defendant#8217;s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Essay Lost Love? Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness.

Simon next argues that the dissertation deadlines, 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 essay his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. Deadlines? The defendant#8217;s claim of intoxication, standing alone, is insufficient to establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to relief. In the context of book reviews, a criminal trial, where evidence of intoxication has been presented, and dissertation, the voluntariness of statements is in issue, even where there is poisonwood criticism 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 deadlines, those admissions under the Fifth and critics reviews, Fourteenth Amendments before a jury is allowed to consider them. See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (#8220;special care is dissertation taken to review the critics reviews, issue of dissertation deadlines, voluntariness where the bible criticism, defendant claims to have been under the deadlines, influence of drugs or alcohol#8221;). Such special care with regard to intoxication is necessary; the United States Supreme Court has noted, #8220;as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the `voluntariness#8217; calculus.#8221; Colorado v. Connelly, 479 U.S.

157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to determine admissibility need take place on the bases of Fifth and difference management essay, Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in dissertation, the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to essay on bipedalism apply the exclusionary rule to dissertation deadlines probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner#8217;s probationary status. See United States v. Gravina, 906 F.Supp.

50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to malpractice police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. Compare United States v. Gravina, supra at 54, quoting from dissertation United States v. James, 893 F.Supp. 649, 650-651 (E.D.Tex.1995) (#8220;an element of constancy should be present in the type of harassment necessary to invoke the exclusionary rule#8230;. [W]here harassment may be a singular act, at least some irregularity in hotel, the conduct of the police officials must be present#8221;). While the police officers were aware of Simon#8217;s probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at deadlines 53-54. See also note 9, supra.

Further, the police had already placed the poisonwood criticism essay, defendant under arrest for driving under the influence, and the record shows that their inquiry was targeted to elicit evidence in support of a conviction on that offense, rather than for the purpose of deadlines, eliciting information by which probation could be revoked. Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and essay lost love, cases cited (#8220;The Federal courts have concluded that, in deadlines, most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of probation is generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from poisonwood bible such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct#8221;). Deadlines? In addition, we note that the United States Supreme Court has drawn no distinction in its analysis of the #8220;voluntary#8221; waiver of the personal right against self-incrimination protected by the Miranda warnings on the one hand, and the due process-based #8220;voluntariness#8221; of a statement protected by the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Essay? Connelly, 479 U.S. at 169-170, 107 S.Ct. 515. Similarly, the Supreme Court #8220;cautioned against dissertation deadlines, expanding `currently applicable exclusionary rules,#8217;#8221; into an area where they could serve little purpose in the protection of constitutional guarantees against police overreaching. See id. at 166, 107 S.Ct. 515, quoting from hotel quality Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. Dissertation Deadlines? 619, 30 L.Ed.2d 618 (1972).

We see no reason that the exclusionary rule be applied in these circumstances. #8220;In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to difference essay probation revocation proceedings because the `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.#8217; See Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669, quoting [from] United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).#8221; Commonwealth v. Dissertation Deadlines? Olsen, 405 Mass. at 493, 541 N.E.2d 1003. #8220;`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 leadership management the public.#8217; Commonwealth v. Vincente, supra at dissertation deadlines 280, 540 N.E.2d 669. Accordingly, the State has an overwhelming interest in being able to book critics return an dissertation deadlines individual to imprisonment without the burden of leadership essay, a new adversary criminal trial if in fact [the probationer] has failed to abide by the conditions of his [or her probation].#8217; Morrissey [v. Brewer, 408 U.S. 471,] 483, 92 S.Ct. [2593], 2601[, 33 L.Ed.2d 484 (1972)]. We weigh this overwhelming State interest in admitting all reliable evidence against the deterrent purpose of the exclusionary rule.#8221; Commonwealth v. Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant#8217;s statement inadmissible, even were we to determine that the statement had been given involuntarily, when, as here, there is deadlines no evidence that the quality thesis, statement was the product of police harassment or the result of a police focus to dissertation obtain evidence specifically for a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the statement, that he operated the vehicle from his home to Crosby#8217;s home that morning, is insufficiently reliable, first because it is unsubstantiated by other corroborating evidence, and, second, because it is hearsay, reported by one officer, and contradicted by other evidence in the hearing.

Although a probation revocation hearing is not a criminal trial, and the defendant need not be given the #8220;full panoply of constitutional protections,#8221; due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is admissible, and poisonwood bible criticism, all reliable evidence should be considered. See id. at 113-117, 551 N.E.2d 1193. Even the right of deadlines, confrontation may be denied if the #8220;hearing officer specifically finds good cause for not allowing confrontation.#8221; Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See Durling, supra at difference leadership 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of providing an accurate determination as to whether revocation is dissertation proper. See Durling, supra at 116, 551 N.E.2d 1193.

Here, there was ample evidence to book critics corroborate the defendant#8217;s statement. It is undisputed that the two went to dissertation deadlines the football game in the defendant#8217;s car. Critics Reviews? The defendant lived a distance from Crosby#8217;s home, and the two were returning there when they were stopped by the police. No other explanation was offered of dissertation deadlines, how the defendant and his vehicle got from his home to hotel thesis Crosby#8217;s.11 The cases cited by dissertation, the defendant in poisonwood criticism essay, 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 hearing on dissertation deadlines, 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 on bipedalism driving earlier in the day, and dissertation deadlines, that he had made a note of it in his police report. Essay? Read was present at the hearing and subject to cross-examination. The statement was an admission against interest made by the defendant to police officers at a time when the dissertation, officers were investigating him for another alleged crime, operating under the influence. The defendant, though present in court, chose to poisonwood bible essay remain silent.

Declarations against penal interest are admissible for the truth of the matters asserted. See Commonwealth v. Cruz, 53 Mass.App.Ct. 393, 401, 759 N.E.2d 723 (2001); Liacos, Brodin #038; Avery, Massachusetts Evidence § 8.10, at dissertation 516 (7th ed.1999). The hearsay was both credible and reliable. Order revoking probation affirmed. 1. See, e.g., Commonwealth v. Villalobos, 437 Mass. 797, 800-801, 777 N.E.2d 116 (2002) (where defendant admits to sufficient facts, judge continues case without a finding, and book critics reviews, defendant then fails to dissertation deadlines meet any conditions attached to essay lost love the continuance, he may be found guilty and sentenced). Dissertation Deadlines? 2. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in bible criticism essay, the imposition of a guilty finding and dissertation deadlines, the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. Medical Malpractice Essay? 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to the testimony given by Officer Read at dissertation the surrender hearing.

Police reports filed after the arrest indicate a somewhat different answer to poisonwood bible essay Read#8217;s initial questions. Any variance is not material to dissertation our decision. 4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby#8217;s statement. In his written findings, the judge noted that he found the defendant in essay, violation based upon his operation after suspension. He also indicated that evidence on which he relied in making the finding included #8220;Mashpee police reports#8221;; #8220;Statement of Kevin Crosby#8221;; #8220;Mashpee P.O. John Read#8221;; #8220;Breath test on D.#8221; Given the written finding that revocation was based on dissertation, #8220;Operating motor vehicle while suspended,#8221; and the judge#8217;s unequivocal statement that he was not relying on critics reviews, Crosby#8217;s statement, we adopt the dissertation deadlines, view that the revocation was based on the defendant#8217;s admission that he had been operating the vehicle earlier that day. Both the Commonwealth and the defendant adopt that position in this appeal. Poisonwood Bible Essay? 5. With respect to the alleged violations, the notice stated in full: #8220;You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. Dissertation Deadlines? # 0089CR00009B op. after susp. lic.#8221; 6. The Commonwealth, having conceded that notice was defective, argues that, even though the trial judge indicated in essay, his findings that he did not rely on Crosby#8217;s statement that the defendant was driving, there is ample additional circumstantial evidence to tie the dissertation deadlines, defendant to the operation of the vehicle at on bipedalism the time of the stop. Dissertation? Having determined that revocation was proper on the grounds cited by essay, the judge, we need not reach the Commonwealth#8217;s arguments in this regard.

7. See as well Rule 3(b)(ii) of the District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. The rule went into effect four days prior to the notice of deadlines, surrender. 8. Coronella#8217;s report states in pertinent part: #8220;During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. [The defendant] was read his rights under [G.L. c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the test and the results were as follows#8230;. [The defendant] was again asked how he got to the #8230; 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.#8221; Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station. 9. The United States District Court for medical malpractice, Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have refused to apply the exclusionary rule to deadlines evidence seized in violation of the medical essay, Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of deadlines, these jurisdictions provide an exception that such evidence is management inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is dissertation deadlines aware of the target#8217;s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit #8220;stands alone#8221; in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. Essay Lost Love? See United States v. Gravina, supra, and cases cited. See also Annot., Admissibility, in Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of dissertation, Miranda Warnings, 30 A.L.R. Fed. 824, 829-835 (1976 #038; Supp.2002).

10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer#8217;s knowledge of a probationer#8217;s status would compel exclusion of evidence obtained. 11. Defense counsel makes much of the fact that on hotel thesis, cross-examination, Read admitted that it was possible that he had been told that a family member had driven the defendant from his home to Crosby#8217;s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to Crosby#8217;s. Any determination of the weight and deadlines, credibility of Read#8217;s testimony was for the judge, and the contradiction was not so egregious as to cause us to hotel quality 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 dissertation deadlines a sobriety checkpoint, the trooper, although he had made no observations of the malpractice, manner in which she had been operating her vehicle, directed her to an area adjacent to dissertation deadlines the checkpoint for administration of field sobriety tests. 76 Mass.App.Ct. 908. Cheryl A. BAZINET. Appeals Court of Massachusetts.

James M. Milligan, Jr., Norwell, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on Route 20 in essay lost love, the town of Auburn on July 22, 2007. A State trooper working the checkpoint spoke with her and detected an dissertation odor of alcohol. Consequently, the trooper, although he had made no observations of the manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of field sobriety tests. When Bazinet stepped out of the book reviews, vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on deadlines, her breath as she spoke.?

Bazinet consented to a breath test which revealed an alcohol level greater than .08%, and she was charged with operating under the influence. See G.L. c. 90, ? 24(1)( a )(1). Before trial, Bazinet moved to dismiss the complaint on grounds that the checkpoint procedures were not consistent with constitutional requirements. Before hearing the motion, a judge of the District Court reported the case for an answer to two questions of bible, law he said arose frequently in the District Court. See Mass.R.Crim.P.

34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. 648, 650, 569 N.E.2d 774 (1991). The questions are these: ?1. The Massachusetts State Police General Order (TRF-15) [which governed operation of the checkpoint] permits a trooper, with reasonable suspicion based upon articulable facts that the operator is deadlines OUI, to further detain an operator directing them from the screening area to the OUI checking area (Pit). Essay Lost Love? Is mere odor of dissertation deadlines, alcohol sufficient reasonable suspicion to further detain an poisonwood bible criticism essay 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 Commander#8217;s Order (06-DFS,056),[[1] constitutionally valid?? The general subject of the reported questions was discussed by dissertation, 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 difference leadership, Murphy held that sobriety checkpoint procedures carried out in dissertation deadlines, a manner consistent with Massachusetts State Police General Order TRF-15, as supplemented by written operational instructions from the troop commander to the officer in charge of a specific checkpoint, met constitution standards.

Id. at 328, 910 N.E.2d 281. We think that the decision in Murphy requires an affirmative answer to both questions. Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon reviews, articulable facts, that the operator #8230; is committing #8230; an OUI violation.? In Murphy, the troop commander#8217;s order, like the troop commander#8217;s order in this case, stated that further screening after the initial stop ?should be made? if the screening officer observed ?any articulable sign of possible intoxication.? Murphy, supra at 321, 910 N.E.2d 281. The court said that the ?odor of dissertation deadlines, alcohol? was one of the leadership management, ?clues of impaired operation? for which the dissertation, screening officers were to check and which, if observed, would provide a basis for further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court#8217;s judgment in that regard is consistent with judgments made by hotel service thesis, 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 motorist#8217;s ability to operate a motor vehicle?); Nickelson v. Kansas Dept. of dissertation, Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist.

No. Book Critics Reviews? 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 dissertation deadlines, Murphy did not consider the Division Commander#8217;s Order 07-DFS-056, which is designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by alcohol. From the record, however, it appears that the checkpoint the State police conducted in medical essay, this case was governed both by General Order TRF-15 and by operational instructions contained in a letter from the troop commander to the officer in dissertation deadlines, charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and medical malpractice essay, 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 dissertation the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the kind of service quality, discretionary enforcement that in other cases has been found constitutionally wanting. See, e.g., Commonwealth v. McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass. 343, 347, 547 N.E.2d 1134 (1989). Dissertation Deadlines? In light of the foregoing, the answer to reported questions one and two is malpractice ?yes.? 1. This appears to dissertation be a typographical error. The Division Commander#8217;s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court#8217;s complete list of ?clues of impaired operation? was ?the condition of the on bipedalism, eyes of the operator, the odor of alcohol, the deadlines, speech of the operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281.

Later in the opinion, the court said that ?TRF-15 requires a predicate of difference management essay, reasonable articulable suspicion based on the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of deadlines, alcohol? from that list. Id. at essay on bipedalism 328, 910 N.E.2d 281. We think that nothing of consequence flows from the omission. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the dissertation, 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. Essay On Bipedalism? c. Dissertation Deadlines? 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT.

Entered: January 27, 2011. NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel#8217;s decisional rationale. Moreover, rule 1:28 decisions are not circulated to hotel service quality thesis the entire court and, therefore, represent only the views of the panel that decided the dissertation, case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. Management? 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 (1) operating a motor vehicle while under the deadlines, influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of poisonwood bible, a motor vehicle, G. L. c. 90, § 24(2)(a). On the day following the rendition of the jury#8217;s verdicts, the presiding judge conducted a bench trial, found that the defendant had incurred three prior OUI convictions, and found her guilty of the dissertation deadlines, enhanced charge of OUI, fourth offense, G. L. c. 90, § 24(1)(a)(1), sixth par. On the same day, the essay on bipedalism, defendant pleaded guilty to the charge of OUI after suspension or revocation of dissertation deadlines, her driver#8217;s license for prior conviction of OUI, G. L. c. 90, § 23. Upon the convictions for OUI fourth, the on bipedalism, judge sentenced the defendant to deadlines four and one-half to five years#8217; confinement at State prison; upon the conviction for operation after suspension or revocation by reason of prior OUI conviction, the judge imposed a sentence of two and one-half years#8217; confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the judge sentenced the defendant to two years at the house of correction to essay lost love run concurrently with her sentence at State prison. The defendant has appealed upon dissertation, two grounds: (1) that the judge failed to follow appropriate procedure for poisonwood essay, determination of the exposure of members of the jury to prejudicial publicity during the course of the trial; and dissertation, (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences. Quality? For the following reasons, we reject the defendant#8217;s appellate contentions and affirm the convictions and deadlines, the sentences.

Factual background. Service Quality? The evidence permitted the jury to find the following facts. On the afternoon of January 26, 2008, the defendant consumed four or five beers at her home in deadlines, Lynn between 2:45 P. M. and 6:00 P. M. At about 6:00 P. M., she left the house in order to essay on bipedalism purchase take-home food from a delicatessen in the city. Dissertation? She took with her an additional can of beer, opened it, and put it in her handbag in the car. Poisonwood Bible Criticism? 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 dissertation, across two more lanes, so as to drive up to and against the front door of a restaurant (not the essay lost love, restaurant to dissertation deadlines which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches. A samaritan offered immediate assistance. She did not respond to his instruction to put the car in park gear; he did so and turned off the ignition. He noticed that her speech was slow and that an odor of alcohol was in her breath.

A Lynn police officer responding to the scene also smelled alcohol both from her breath and from the interior of the automobile. Poisonwood Bible Essay? The officer also observed glassy and bloodshot eyes and slurred speech. He saw the dissertation, 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 malpractice essay, testimony, the Lynn Item newspaper published a morning article about the deadlines, case. The story carried the headline, #8216;Trial begins for Lynn mom charged with 5th OUI.#8217; The article stated that she had incurred three #8216;drunken driving#8217; convictions during the 1990#8242;s and a fourth in 2004. The article stated also that she #8216;blew a.15 alcohol blood level when arrested#8217; for essay, the current incident. At the beginning of the third day of trial, all counsel and the judge discussed the dissertation, appearance of the malpractice essay, article. When the jury entered the courtroom, the judge addressed the following question to dissertation them. #8216;Has any member of the jury read, seen, heard or overheard anything from bible any source about any aspect of dissertation deadlines, this case outside of the book critics, courtroom, since yesterday, that has affected or would affect your ability to consider this case in any way as a fair and impartial juror?

Nobody#8217;s raising their hand.#8217; He added a second question. #8216;Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is anyanything you#8217;ve heard at all, even the tiniest thing. Okay, nobody is raising their hand. Okay. All right, so we will resume with the trial.#8217;

Defense counsel did not object to the judge#8217;s treatment of the issue of exposure to prejudicial publicity by these questions. Later that day, after the deadlines, close of the medical malpractice essay, evidence and in the course of final instructions to the jury, the dissertation deadlines, judge reminded the jury at three points that they must base their verdict exclusively upon the evidence comprised of testimony and exhibits received in the courtroom. Again, defense counsel had no objections to the pertinent portions of the instruction. After the return of the on bipedalism, jury verdicts, the finding of the bench trial, and the submission of the plea of dissertation deadlines, guilty to operating after suspension or revocation for prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. #8216;This is malpractice essay a sad case. I understand that I have a limited amount of information about what happened and about the [d]efendant, but it#8217;s pretty obvious to me that, from dissertation deadlines what I have received, that the [d]efendant Ms.

King is probably a very nice person and she probablyit#8217;s not hard to thesis see that she#8217;s probably had a difficult life; I am sensitive to these things. But the sentence I#8217;m going to impose is deadlines necessary, in my view.#8217; The judge then specified the sentence for each offense. At the conclusion of his announcement of the respective sentences, he made the following one-sentence statement. #8216;I assume it#8217;s obvious what my feelings are about why this sentence is required.#8217; The remark brought no objection. Poisonwood Criticism? On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the dissertation, appropriate space for explanation of the departure from the guidelines, he wrote, #8216;Upward departure because of the egregious nature of the offenses, surrounding circumstances and prior record.#8217; Newspaper article. On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. The article had obvious prejudicial potential by reason of its information about a breathalyzer test result and the defendant#8217;s prior OUI convictions. Because the defendant lodged no objection to the judge#8217;s preventive or curative efforts at the time of medical malpractice essay, trial, we review this argument under the standard of substantial risk of dissertation, 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 verdict; and (4) whether counsel#8217;s failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002). In this instance, we find no error in the judge#8217;s management of the issue. The defendant relies upon the case of Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). The court in that instance set out the following standard operating procedure for instances of medical malpractice essay, discovery of potentially prejudicial publicity during the course of deadlines, trial. #8216;If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on collectively, but if any juror indicates that he or she has seen or heard the essay lost love, material, there must be individual questioning of that juror, outside of the dissertation deadlines, presence of any other juror, to determine the extent of the malpractice essay, juror#8217;s exposure to the material and its effects on the juror#8217;s ability to render an impartial verdict#8217; (emphasis supplied). The thrust of the defendant#8217;s argument here is that the judge had a duty, not an option, to conduct individual voir dire questioning of the jurors. Deadlines? As the governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to malpractice essay the collective question, the judge has no further duty to carry out individual questioning. Dissertation? Consequently, the judge here complied with the standard of the Jackson rule.

In addition, we should observe that, in the absence of book reviews, any affirmative answers to dissertation the collective question, a judge#8217;s continuation into individual interrogation of jurors may adversely stimulate the poisonwood, curiosity of those jurors about potential prejudicial publicity and cause them to search for dissertation deadlines, it during the course of a trial. That danger has become all the more serious as a result of the evolution of Internet technology. Both doctrinally and practically the judge committed no error in essay lost love, these circumstances. 1. Sentencing. The defendant argues that the judge#8217;s reference to #8216;feelings#8217; about the imposed sentences reveals a violation of the deadlines, standard of impartiality mandated for sentencing by case law, particularly the case of Commonwealth v. Mills, 436 Mass. On Bipedalism? 387, 399-402 (2002). That decision emphasizes, #8216;A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and transform it from that of deadlines, impartial arbiter.#8217; Id. at 401.

The defendant characterizes the hotel service quality, reference to #8216;feelings#8217; as a forbidden indulgence of dissertation deadlines, #8216;personal and private beliefs.#8217; The judge#8217;s fleeting reference here falls far short of the poisonwood criticism, prohibited comments discussed in deadlines, the Mills case and in essay lost love, any of the decisions cited by the Mills discussion. We view the reference to #8216;feelings#8217; in the setting of the judge#8217;s entire remarks about sentencing. In that light, it reflects reasons and not emotion. Dissertation Deadlines? He commented that he viewed the case as a #8216;sad#8217; one. Since it involved no personal injuries or casualty, his reference to service its #8216;sad#8217; character alluded to the fate of the defendant. He observed that she may well have had a hard life. Dissertation? He observed also that he was #8216;sensitive#8217; to bible criticism her circumstances. At the same time, he found her behavior over dissertation the decade and book critics, one-half covered by dissertation, her four OUI convictions to constitute a serious threat to public safety. He justifiably viewed her record as #8216;egregious.#8217; She embodied a danger to the lives of innocent travelers and pedestrians on and near the roadways.

His sentencing scheme removed that peril for the period of years imposed for confinement. The sentencing fell within the bounds of rational discretion. By the Court (McHugh, Sikora #038; Fecteau, JJ.), Entered: January 27, 2011. 1. An additional interpretation of the defendant#8217;s argument is difference that the judge had a duty to make specific reference to the Lynn Item article in his collective question to the jury. Deadlines? The Jackson case creates no such duty. Specific reference would raise the risk of juror research.

The judge#8217;s choice created no error of law or abuse of discretion. Leadership? Mass DUI OUI #8220;Not Public Way#8221; Observed obviously intoxicated and dissertation, urinating in poisonwood, public immediately after driving onto a pier in deadlines, the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. Leadership Management? 76 Mass.App.Ct. 830. Appeals Court of deadlines, Massachusetts, Argued Feb.

3, 2010. Decided June 1, 2010. Essay Lost Love? Sharon Dehmand for dissertation, the defendant. Nick Kaiser (Kris C. Reviews? Foster, Assistant District Attorney, with him) for the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and dissertation deadlines, urinating in quality, public immediately after driving onto deadlines a pier in the Charlestown section of Boston, the defendant, Gregory Belliveau, was convicted of operating a motor vehicle while under the influence of alcohol. (OUI), fifth offense, in violation of G.L. c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ?? 1, 2. On appeal, he argues that the pier on which he was arrested was not a public way under the statute, that he received ineffective assistance of counsel, and that the essay on bipedalism, judge considered improper factors in sentencing the defendant. We affirm. 1. Facts. The jury were warranted in finding the following facts: Pier 4 is located in the Charlestown Navy yard. The pier is surrounded on all sides by water and accessible by automobile only by way of public streets.1 Those streets end at Terry Ring Way. Dissertation Deadlines? 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 hotel the pier is then through a swinging gate. Deadlines? 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 quality thesis, 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 dissertation, quickly, coming within a few feet of him. This caught his attention because he understood from signage at the pier, his city employment, and his activities at the pier that unauthorized vehicles were not allowed on the pier. The vehicles he had seen on the pier were ?usually the criticism essay, director#8217;s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant#8217;s car was on would had to have gone across the dissertation, wooden boards into medical essay the section down on the pier; there#8217;s no motor vehicles at all, it#8217;s a pedestrian pier,? and subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there#8217;s ships that go off there to shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the truck had stopped, and he observed the defendant standing next to the truck with a Budweiser beer in dissertation, his hand, publicly urinating.

He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and blurry-eyed, and that he smelled of alcohol. Spinetto attempted to dissuade the defendant from driving, but the defendant got back into the truck and attempted to leave the scene. With the assistance of another witness, Steven Estes-Smargiassi, Spinetto prevented the defendant from leaving by opening and closing the book reviews, truck#8217;s doors and by closing the dissertation, gates to the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant. Shortly thereafter, the national park rangers and critics, Boston police arrived. After examining the truck, in which they found beer, and talking to the defendant, the police placed the defendant under arrest. Dissertation? 2. Public way.

In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to which the public has a right of access, or upon any way or in any place to difference leadership 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 dissertation deadlines include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of essay lost love, park commissioners or body having like powers.? G.L. Deadlines? c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the ?public have a right of access by motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct. Essay On Bipedalism? 1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. Dissertation Deadlines? 545, 549, 672 N.E.2d 16 (1996).

In making that determination, we look to see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel#8230;.? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Commonwealth v. Kiss, 59 Mass.App.Ct. at 250, 794 N.E.2d 1281. ?Some of the usual indicia of accessibility to the public include paving, curbing, traffic signals, street lights, and quality, abutting houses or businesses.? Commonwealth v. Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16. See Commonwealth v. Stoddard, 74 Mass.App.Ct.

179, 182, 905 N.E.2d 114 (2009); Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1010, 505 N.E.2d 218 (1987) (marked traffic lanes and hydrants indicia of public accessibility). Indicia that the way is not accessible to the public include signage or barriers prohibiting access. See Commonwealth v. George, 406 Mass. at 639, 550 N.E.2d 138 (barriers and sign saying, ?[N]o cars beyond this point?); Commonwealth v. Stoddard, 74 Mass.App.Ct. at deadlines 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is of great significance?). Deeds are also relevant considerations. See Commonwealth v. Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980). The focal point of the case was whether Pier 4 was a public way. Poisonwood Bible Essay? To that end, the dissertation, 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 the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on medical essay, the pier as there are almost every evening,? and deadlines, testimony regarding the presence on poisonwood essay, 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 dissertation deadlines, defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to difference authorized vehicles. The Commonwealth#8217;s own testimony also supported the contention that only limited vehicular access was allowed on dissertation, the pier, although vehicles were allowed on Terry Ring Way leading to the pier.

In sum, the essay lost love, 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 deadlines, 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 essay 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 deadlines, conviction because the drinking and driving occurred on management essay, the baseball field, which did not provide vehicular access to the public.4. In the instant case, the presence of a gate and signage are strong indicators that restrictions on public vehicular access were in dissertation, place. However, the gate blocking vehicular access to on bipedalism the pier was not locked and could be opened by the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the dissertation deadlines, sign appearing in the photographs included in the trial exhibits was small and partly washed out. See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at management 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the road as one approache[d] the entrance? and physical circumstances did not suggest a public way). The deed also expressly provided for vehicular access to the public.

The presence of a public water shuttle dock and 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 dissertation, 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 essay lost love, influence of dissertation, alcohol not only on the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and essay, plans introduced in evidence, as well as supporting testimony, there was no other way to get to deadlines the pier by difference management, 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 deadlines infer that the defendant was intoxicated while he was driving on those public roads before he arrived at the pier. Quality Thesis? The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on dissertation deadlines, his feet, and having to urinate in public. Proof of operating under the influence on a public way may ?rest entirely on circumstantial evidence.?

Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. 458, 158 N.E. 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to provide the necessary proof of all three elements of the offense: the public way, the driving, and essay, the impairment. Moreover, the judge#8217;s instruction to the jury in defining a public way was not unnecessarily narrowed to the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by some level of government is dissertation what we call a public way. This includes, for leadership management essay, instance, interstate and state highways, as well as municipal streets and roads.? Thus, the instructions on public way encompassed the public roads on which the defendant testified that he drove to arrive at deadlines the pier. 3. Remaining issues.

We need not belabor the remaining issues. First, trial counsel#8217;s 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 his feet, we cannot say on this record that trial counsel#8217;s informed and strategic decision to elicit from the defendant that he had sustained a knee injury and that was why he refused to take a field sobriety test was manifestly unreasonable.7 Regardless, given the overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the medical essay, defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Dissertation? Finally, the defendant#8217;s argument that the judge considered improper factors in sentencing is without merit. Essay Lost Love? The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of limb after being run over by a drunk driver over thirty years prior, and dissertation, making a plea for the judge to keep the defendant from injuring other people. Although the judge briefly mentioned Spinetto#8217;s community impact statement in management, 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. Dissertation Deadlines? (concurring).

I concur fully in the specific rationale of the affirmance: that the evidence and the judge#8217;s proper instructions permitted the jury to find that the defendant had driven under the influence of alcohol on the public roads leading to poisonwood criticism the pier. Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to resolve the ?close question? whether the pier constituted ?any way or #8230; any place to deadlines which the leadership management, public has a right of access, or #8230; any way or #8230; any place to which members of the public have access as invitees or licensees#8230;.? G.L. Dissertation? c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of bible, precedent restrictively construing the statutory terms ?way? and ?place.? As usual, we have avoided possible contradiction of precedent still approved by the Supreme Judicial Court.1 At the dissertation deadlines, same time, I believe that the evidence of medical, this case exposes a deficiency in the current statutory construction and the need for examination of the underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in 1961, see St.1961, c. 347, to provide the dissertation deadlines, following: ?Whoever, upon any way or in any place to which the public has a right of access, or upon book critics reviews, any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle #8230; while. Dissertation Deadlines? under the influence of intoxicating liquor #8230; shall be punished#8230;.? 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 499-501. Four important and independent circumstances of the service quality, use of the pier emerge as well from the evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to a terminal at dissertation deadlines the edge of the pier from which they could walk across it. An instructional sailing club conducted a program for children from the book, pier; their parents and dissertation, friends would observe their. races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on hotel, the pier and endangered by the defendant#8217;s driving were pedestrians. Additionally, the evidence permitted the dissertation deadlines, jury to make the following findings about the defendant#8217;s conduct. He drove his pickup truck at a high speed onto the pier; got out and urinated onto hotel quality thesis one of the benches; reentered the truck and deadlines, backed into another bench; and then backed up further so as to collide with a storage shed used by malpractice, the sailing club.

The truck suffered substantial damage; the defendant got out deadlines, again and poisonwood bible, walked away from it. Major case law. A sensible and direct application of the words of the statute to the circumstances of the pier and deadlines, the actions of the essay lost love, defendant would appear to deadlines make him punishable. However, the interpretative overlay of the following cases has required that the ?way? or ?place? in question be one of public ?access? by ?motor vehicle.? Commonwealth v. George, 406 Mass. 635, 638, 550 N.E.2d 138 (1990). That construction forces us, somewhat anomalously, to 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 influence ?on any public way or private way laid out under authority of law.? St.1906, c. 412, ? 4. It made no reference to operation in a ?place.?

Early decisions dealing with operation on a ?way? stated that ?[t]he statute was passed for the protection of book critics, travellers on highways,? and therefore presumably persons in motor vehicles. Deadlines? 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 bible criticism, without engagement of the engine by dissertation deadlines, 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 essay lost love regulate the use of motor vehicles upon ways?).

In 1928, the Legislature rewrote the entire provision. Its opening main clause now declared, ?Whoever upon any way, or in any place to which the public has a right of access, operates a motor vehicle #8230; while under the influence of intoxicating liquor #8230; shall be punished #8230;? (emphasis supplied). G.L. Deadlines? c. 90, ? 24, as appearing in St.1928, c. 281. Thus the book critics reviews, notion of statutory protection for highway travelers or motorists took hold in the version of the dissertation, act predating any reference to medical essay operation in a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the concept of a ?place? as the site of operating under the dissertation deadlines, influence. Despite the book reviews, added term, the court in Commonwealth v. Paccia, 338 Mass.

4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon deadlines, 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 malpractice essay, a market building. The court reasoned that the canon of strict construction of penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the public as business invitees or licensees. Deadlines? Ibid. Three years later the essay, Legislature responded with the deadlines, additional words ?as invitees or licensees.? St.1961, c. Essay? 347.

In one subsequent case, Commonwealth v. Connolly, 394 Mass. 169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on dissertation deadlines, the meaning of ?under the influence?), the court in dicta repeated the language of the book critics, 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). In another it determined that the dissertation, defendant#8217;s operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the hotel service quality, owner#8217;s permission did not involve a ?place to which the members of the public [have] access as invitees or licensees? because the owner had never consented to such entry. Commonwealth v. Deadlines? Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the criticism, 1961 amendment had ?extend[ed] the dissertation deadlines, reach? of the essay lost love, act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against the Commonwealth applied to its terms. Id. at 205, 539 N.E.2d 533. ?There is reason to dissertation deadlines believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in poisonwood bible criticism, places ?such as public parking lots or chain store parking lots.? ? Ibid. In its last assessment of this portion of the act in dissertation deadlines, 1990, the court held that the center field area of a public school baseball field did not qualify as a public way or place to which the public had access by motor vehicle as of right or as invitees or licensees because both physical barriers and ?no trespassing? signs blocked entry onto the field. Commonwealth v. George, 406 Mass. at 639-640, 550 N.E.2d 138. The court noted that its prior decisions had assumed ?without discussion? that the statutory term ?access? meant access to a particular way or place by motor vehicle. Difference Management Essay? Id. at 638, 550 N.E.2d 138.

4. Deadlines? The issue. Poisonwood Criticism? None of the cases appears to have addressed the applicability of the statute to deadlines places to which members of the on bipedalism, public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the unexamined assumption that the term ?access? in deadlines, the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by its language and contradicted by its safety purpose. The precise language of the act is the first source of insight into its meaning and legislative intent. See, e.g., Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. Book? of the dissertation, Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in any place? accessible to members of the essay, public as invitees or licensees. Deadlines? The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of essay on bipedalism, access? and ?invitees and licensees? denotes the dissertation deadlines, generality of the intended ?place.?

The Legislature did not confine the roles of invitees or licensees to persons conveyed by motor vehicles. Difference Management Essay? It. Dissertation Deadlines? chose the additional words in 1961 as a specific answer to the narrow interpretation and the invitation of additional language by the then recent Paccia decision, 338 Mass. at 6, 153 N.E.2d 664. In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the malpractice essay, courts have pointed out that the act#8217;s penal character requires strict interpretation.

See Commonwealth v. Paccia, 338 Mass. at 6, 153 N.E.2d 664 (rejecting ?exten[sion] merely by implication?); Commonwealth v. Connolly, 394 Mass. at deadlines 174, 474 N.E.2d 1106 (?[w]e must resolve in favor of criminal defendants any reasonable doubt as to the statute#8217;s meaning?); Commonwealth v. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against the Commonwealth?). If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. Poisonwood Essay? However, as the deadlines, latest reference in the George case, 406 Mass. at critics 638, 550 N.E.2d 138, points out, the critical assumption of the law#8217;s limitation to members of the public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity. The rule of dissertation, lenity gives the defendant the benefit of a plausible ambiguity. It ?does not mean that an available and sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from essay on bipedalism 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 deadlines, a discussion of the scope of the act. One is critics that each substantive word of dissertation, a statute has separate meaning. Essay? See, e.g., Commonwealth v. Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. 90, ? 24G [ a ], against the defendant#8217;s contention of dissertation deadlines, redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the management essay, Legislature#8217;s addition of the word ?place? in 1928 meant something more than a ?way.? Both the statutory definition of ?way,? G.L. Dissertation? c. 90, ? 1, supra at critics reviews note 4, and the general ordinary meaning depict an artery supporting some degree of traffic or movement.

By contrast, a ?place? denotes a far more generic location unrestricted to the conveyance of traffic. If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Dissertation Deadlines? Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002), and cases cited. The 1928 addition of the 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. Essay? 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 Legislature#8217;s words ?any place to which the deadlines, public has a right of access, #8230; or #8230; any place to essay lost love which members of the public have access as invitees or licensees.? That narrowing addition undercuts the legislative trend to broaden the coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969); Commonwealth v. Millican, 449 Mass. at 303-304, 867 N.E.2d 725. The application of the impaired driver statute for deadlines, the protection of members of the public as motorists but not as pedestrians produces at least an irrational result. It paradoxically exempts from criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways.

It excludes from the protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the essay lost love, usual ways of motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the kind presented in dissertation deadlines, this case would be located in places of insufficient public access for protection against essay, impaired drivers because they entered them on foot. That interpretation opens a substantial gap in the coverage of the dissertation deadlines, act. It shifts the application of the law from the irresponsible conduct of the impaired driver to hotel thesis the fortuitous location and status of his endangered or injured victim. Solutions. A ?place? is a location other than a ?way,? and dissertation, a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the statute. Poisonwood Bible Criticism Essay? The principle of stare decisis should not denature into a pattern of errare decisis. Several processes are available to dissertation deadlines break the momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator#8217;s use of public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here. Within the judiciary the Supreme Judicial Court could reconsider the present construction said by the court in George to essay lost love have evolved without discussion.

Finally, and perhaps ideally, the Legislature could further amend the statute to extend its reach unmistakably to ?any place in which the public has a right of access, or #8230; any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the dissertation deadlines, exhibits. 2. The defendant testified that after leaving work at essay lost love 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 Pier 4. Deadlines? As he approached the pier, he had to ?race up and pass? one car. He then drove up Terry Ring Way to malpractice a closed double swinging gate. As the defendant moved for a required finding of not guilty at the close of the Commonwealth#8217;s case on the public way question, we do not consider the defendant#8217;s testimony in determining whether that motion should have been allowed.

3. In Commonwealth v. Deadlines? George, ?the parties [had also] agreed and the jurors were instructed that the leadership management essay, 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. Dissertation Deadlines? George, supra at 637-638, 550 N.E.2d 138, indicated that the defendant consumed alcohol on the field and overturned the car while trying to leave the field. In the instant case, in contrast, the reviews, 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 dissertation the pier. 5. We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge#8217;s instructions and the proof offered adequately presented the issue for the jury#8217;s consideration.

6. The passenger left the car soon after they were confronted at the pier. 7. The Commonwealth chose not to inquire about the field sobriety test on cross-examination. 8. The judge explained that ?having weighed the statutory language, having weighed the facts of the offense, and this defendant#8217;s prior record, having considered the mitigating information and the letters submitted by his wife, his mother, and his sister, having paid heed to the recommendations of the prosecutor in the case and the recommendations of the defense attorney, I believe that this is an appropriate sentence taking into consideration all of those factors.? 1. From its inception the Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. Hotel Service Thesis? 234, 239, 295 N.E.2d 184 (1973). Dissertation Deadlines? Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988). Hotel Service Quality? Commonwealth v. Dube, 59 Mass.App.Ct.

476, 485-486, 796 N.E.2d 859 (2003), and cases cited. That limitation, however, does not bar the deadlines, court from useful observations in dicta about the continuing viability of precedent challenged by hotel quality, the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the landlord#8217;s breach of covenants in the lease; and the subsequent decision of the dissertation deadlines, Supreme Judicial Court overruling that doctrine, Wesson v. Essay? Leone Enterprises, Inc., 437 Mass. 708, 709, 774 N.E.2d 611 (2002).

Other observations may recommend the dissertation deadlines, extension or the insertion of standards or rules to cure chronic problems revealed by malpractice essay, 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. 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. Dissertation Deadlines? 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 G.L. Hotel Quality? c. 90, ? 1: ?any public highway, private way laid out deadlines, 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 abutting houses or businesses.? Ante at 833, 927 N.E.2d at essay lost love 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 dissertation, conviction of operating under the influence under ? 24(1)( a )(1) dealt with a way on both sides of which were business abutters and which was indisputably open for travel by motor vehicles. Commonwealth v. Hart, 26 Mass.App.Ct. at 237-238, 525 N.E.2d 1345. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY.

Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation.

Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant#8217;s 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. Essay On Bipedalism? Whitehead, J. James P. McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from deadlines a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of G.L. c. 90, § 24(1)(a)(1). 1 His principal issue focuses on the meaning of #8220;operation#8221; under that statute.

We affirm. 1. Operation of the motor vehicle. Medical Malpractice Essay? A. Operation as matter of dissertation deadlines, law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the difference management, influence of dissertation deadlines, intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the criticism, electricity on, but not turning the engine on. There was no evidence from which the jury could infer that the deadlines, 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 essay, evidence of operation was insufficient as matter of law because putting a key into dissertation deadlines the ignition and turning it does not constitute operation when the engine has not been engaged. Book? 2 The issue whether a defendant who places the key in the ignition and turns the electricity on without starting the engine may be found to deadlines be #8220;operating#8221; the on bipedalism, vehicle for purposes of deadlines, G.L. c. 90, § 24, is one of critics, first impression in Massachusetts. 3. To define #8220;operation#8221; we must look to the touchstone case of Commonwealth v. Uski, 263 Mass.

22, 24 (1928), which held that #8220;[a] person operates a motor vehicle within the dissertation, meaning of essay, 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 dissertation, motion the poisonwood bible criticism, motive power of that vehicle.#8221; 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation). Dissertation? Under the Uski definition, turning the key in the ignition to the #8220;on#8221; setting could be found to be part of a sequence that would set the vehicle#8217;s engine in motion and that would, thus, constitute operation. Essay? 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. Dissertation? The purpose of G.L. c. Poisonwood Bible Criticism? 90, § 24, is to #8220;protect[] the dissertation, public from intoxicated drivers,#8221; Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by #8220;deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.#8221; Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 300-321 (1994), quoting from State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977).

Cf. State v. Haight, 279 Conn. 546, 554-555 (2006), quoting from State v. Essay On Bipedalism? Gill, 70 Ohio St.3d 150, 153-154 (1994) (#8220;[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated#8230;#8221;). Even an intoxicated person who is dissertation sleeping behind the wheel is dangerous because #8220;that person may awaken and medical, decide to drive while still under the deadlines, influence.#8221; 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 the passenger#8217;s 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 #8220;operated#8221; the motor vehicle. See also State v. Essay Lost Love? Haight, 279 Conn. at 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will #8220;set in motion the motive power of the vehicle#8221;) (citation omitted). 7, 8. We are unpersuaded by the defendant#8217;s interpretation of Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an dissertation engine be engaged and as meaning that turning the key to the #8220;on#8221; position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to a position that does not start the car would only draw power from the battery and thus neither starts the engine nor makes use of the power provided by its engine. Even if we assume, arguendo, that the defendant is correct and that turning the key to hotel service quality the #8220;on#8221; position does not engage the dissertation deadlines, engine, 9 the defendant misconstrues Ginnetti.

In Ginnetti, supra at 183-184, the court was faced with the essay, question whether a vehicle with a functioning engine was rendered inoperable within the meaning of G.L. c. 90, § 24, #8220;merely because it is immovable due to road or other conditions not involving the vehicle itself.#8221; Id. at deadlines 184. Applying the Uski definition to the facts before it, the court concluded that #8220;the defendant#8230; operate[d] a motor vehicle by starting its engine or by essay lost love, making use of the dissertation deadlines, power provided by its engine.#8221; Id. at 183-184. In so holding, the court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant#8217;s argument that the jury instructions were inappropriate. The judge#8217;s instructions to book the jury, 10 to dissertation which defense counsel did not object at trial, did not create a substantial risk of miscarriage of bible essay, justice. Contrary to the defendant#8217;s claim, the instructions did not leave jurors with the impression that evidence that the defendant was sleeping in deadlines, the driver#8217;s seat with a key turned in the ignition compelled a finding of operation. Essay Lost Love? Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. Dissertation Deadlines? 230, 234 (1990). 11. B. Leadership Essay? Sufficiency of the evidence.

The defendant, who does not challenge being under the influence of intoxicating liquor 12 or the deadlines, fact that the vehicle was on essay, a public way, 13 argues on appeal that the Commonwealth failed to dissertation present sufficient evidence that he #8220;operate[d] a motor vehicle.#8221; See G.L. c. 90, § 24(1)(a)(1). More specifically, he contends that as a factual matter, the Commonwealth failed to prove that he put the key in the ignition of the car and turned the essay, key. Deadlines? We consider #8220;whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by essay, the defendant, is dissertation sufficient#8230; to permit the jury to infer the existence of the essential elements of the crime charged#8230;#8221; beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. On Bipedalism? 671, 676-677 (1979) (citation omitted). The evidence viewed in deadlines, the light most favorable to the Commonwealth shows that the defendant was found asleep in the driver#8217;s seat #8220;slumped over the wheel of the van holding a roast beef sandwich in his hands, with sauce dripping down his hand.#8221; The defendant#8217;s feet were #8220;right in essay lost love, front of him.#8221; The vehicle#8217;s dashboard was illuminated. The key was in the ignition and had been turned to deadlines the #8220;on#8221; position so that the #8220;energy to the vehicle was on,#8221; but the engine itself was off and #8220;[t]he vehicle was not running.#8221; The police officer had to reviews #8220;physically turn the dissertation deadlines, ignition back#8221; in order to remove the book critics, key. The police did not observe anyone else in the van at the time of arrest.

Viewed as a whole, the deadlines, evidence was sufficient to support a finding that the defendant, while sitting in medical malpractice, the driver#8217;s seat of the vehicle, put a key in deadlines, the ignition and turned it to the #8220;on#8221; position. See Commonwealth v. Cabral, 77 Mass.App.Ct. 909, 909 (2010) (#8220;Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI#8221;), citing Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and the arresting officer that the defendant, upon essay lost love, being awakened by the police officer, told the officer that the officer did not have the vehicle#8217;s keys. The defendant testified that, after he moved to the driver#8217;s seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the dissertation deadlines, defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in denying putting the key in the ignition. Moreover, the existence of contradictory evidence does not require a finding of not guilty. See Commonwealth v. Essay Lost Love? Pike, 430 Mass.

317, 323-324 (1999). Second, the defendant points to the testimony of his friend that the friend left the defendant passed out in the passenger seat and threw the keys on the passenger side floor when he left the vehicle. 14 Even if the jury credited this testimony, it does not require a finding of dissertation, not guilty because the book critics, jury could reasonably have inferred that the deadlines, defendant, who admitted moving from the passenger seat into malpractice the driver#8217;s seat, picked up the key and dissertation, put it in the ignition when he moved to the driver#8217;s seat. 2. Other issues. A. Though he did not object below, the defendant argues that the prosecutor misstated the evidence during his closing argument, creating a substantial risk of a miscarriage of justice requiring reversal. We disagree.

The prosecutor#8217;s argument disputing the defendant#8217;s characterization that he was victim of a conspiracy by the police officers was an appropriate response to defense counsel#8217;s argument that implied such a conspiracy. See Commonwealth v. Malpractice Essay? Duguay, 430 Mass. 397, 404 (1999). We also conclude that the prosecutor#8217;s statement that the dissertation, defense witness#8217;s testimony corroborated the officers#8217; testimony was a fair representation of the evidence. B. The defendant argues that his right to testify was #8220;improperly muzzled#8221; 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 defendant#8217;s friend that the defendant said he had to work early in the morning and planned to sleep in the van overnight. Furthermore, the record supports the essay, conclusion that the defendant accepted his attorney#8217;s strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of dissertation deadlines, prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997). C. Prior to trial, the defendant moved to replace his attorney, and the judge denied the medical essay, motion. The record reflects that as soon as the judge became aware of a conflict between the dissertation deadlines, defendant and essay lost love, his counsel, the defendant was provided an deadlines opportunity to bible criticism essay explain his reasons for wanting to remove his attorney. The judge did not abuse his discretion in denying the defendant#8217;s motion where (1) this trial counsel was the dissertation deadlines, defendant#8217;s third attorney; (2) the case was two years old; (3) although the hotel service, defendant was upset with his attorney for arguing a motion for a new trial on his behalf, but without the defendant#8217;s presence, the dissertation, defendant#8217;s presence would not have affected the outcome of that motion for a new trial; and (4) the defendant merely complained of hotel quality, something that any lawyer who represented him #8220;who had any competence at dissertation deadlines all would do.#8221; See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. Poisonwood? The defendant argues that the dissertation, judge abused his discretion by refusing to medical malpractice remove two jurors for cause. We disagree.

With respect to each of the complained-of jurors, the judge dispelled any concerns about the juror#8217;s bias through follow-up questioning, in deadlines, which the difference essay, jurors said they would consider all the evidence to determine whether a police officer was telling the truth in the event that the officer#8217;s testimony was challenged. A trial judge is afforded #8220;a large degree of discretion#8221; in deadlines, the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). Essay? #8220;Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and has determined that a juror stands indifferent, [the court] will not conclude that the judge abused his discretion by empanelling the juror unless juror prejudice is manifest.#8221; 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 deadlines, Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendant#8217;s contention is without merit. First, there was ample evidence that the defendant was the person who had been convicted of similar offenses once in hotel service quality thesis, 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (#8220;[registry of motor vehicles] records, which contained more particularized identifying information#8230;, also reflected the offenses and the fact that they were the defendant#8217;s#8221;). Dissertation Deadlines? See also Commonwealth v. Essay Lost Love? Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. Dissertation Deadlines? 368, 372 (2003). Book? 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. Dissertation Deadlines? 1, 5 (2010). Finally, the judge#8217;s instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the jury that the documents in hotel service, question were OUI convictions and reminded the jury that the Commonwealth still had the dissertation deadlines, burden to prove that the defendant was the person who had committed these previous offenses. F. There is essay no merit to the defendant#8217;s contention that he was denied his right to deadlines speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. 910 (1979), #8220;a criminal defendant who is hotel thesis not brought to trial within one year of the return day in the court in deadlines, which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay.#8221; Commonwealth v. Essay Lost Love? Montgomery, 76 Mass.App.Ct. 500, 502 (2010). The return day here was March 8, 2005. The defendant#8217;s trial began on January 23, 2007, 686 days later. #8220;The delay may be excused by a showing that it falls within one of the #8216;[e]xcluded [p]eriods#8217; provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.#8221; Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992).

Of the 686 days between those two dates, the docket sheet and documents filed in support or opposition to deadlines the defendant#8217;s 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. 15 See Barry v. Commonwealth, 390 Mass. 285, 298 (1983). There were 185 days when the defendant was unavailable while on trial on another charge that are also excluded. 16 See Mass.R.Crim.P.

36(b)(2)(A)(iii), 378 Mass. 910 (1979). Finally, the defendant#8217;s motion to dismiss, which was filed on December 13, 2006, and decided on January 10, 2007, also tolled the medical malpractice essay, running of the rule 36 time for twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at deadlines 505 n. Difference Management Essay? 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 count against the Commonwealth. Therefore, the defendant was tried within the time constraints of rule 36(b), and the order denying the motion to dissertation deadlines dismiss is medical malpractice affirmed. 18. Dissertation? 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part: #8220;Whoever, upon any way or in any place to which the poisonwood, public has a right of access, or upon any way or in any place to which members of the deadlines, public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in on bipedalism, 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#8230;. #8220;If the dissertation deadlines, defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program#8230; 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 book critics reviews, not less than [$1,500] nor more than [$25,000] and by imprisonment in the state prison for not less than two and one-half years nor more than five years#8230;.#8221; 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is #8220;standing still.#8221; Commonwealth v. Deadlines? 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 difference management essay, the driver#8217;s seat with the engine running or while it was still warm, it is well established that a jury may draw the reasonable inference that he operated his vehicle within the meaning of the statute. See Commonwealth v. Eckert, 431 Mass. 591, 599-600 (2000) (testimony of dissertation, police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant #8220;seated in the driver#8217;s seat with the engine running and a key in the ignition#8221;); Commonwealth v. Petersen, 67 Mass.App.Ct. 49, 52 (2006) (proof of operation where engine still warm). Cf. Leadership? Commonwealth v. Dissertation? Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of essay on bipedalism, car with engine running and keys in ignition does not necessarily mandate a finding of deadlines, operation). 4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on book, the motor or simply placed the key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (#8220;The defendant#8217;s intention after occupying the driver#8217;s seat is deadlines not an element of the statutory crime#8221;). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (#8220;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 essay lost love less than where an intoxicated person is deadlines 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#8221;). 7. Cf. Stevenson v. Essay Lost Love? Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to deadlines the Uski definition in holding that the defendant did not operate the vehicle #8220;[b]ecause the presence of the key in essay, the ignition switch in the off position did not engage the mechanical or electrical equipment#8221; 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). Dissertation? 8. Critics Reviews? We do not decide whether any or all of the dissertation deadlines, following could be found to be operation under G.L. Essay On Bipedalism? c. Dissertation? 90, § 24: inserting a key in the ignition without turning it and without engaging the motor or the vehicle#8217;s power; using an medical electronic remote starting device to start the engine of the deadlines, car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in the ignition to engage either the electricity or the motor before going to sleep in a seat other than the driver#8217;s seat. Book Reviews? 9. In the absence of any evidence below regarding whether the key, when turned in dissertation deadlines, the ignition to the on position, engages the engine, we reach no conclusion on that mechanical issue. 10. The relevant portion of the malpractice essay, jury instructions is the following: #8220;The first element which the Commonwealth must prove is that the defendant operates a motor vehicle.

The expression #8216;operation of dissertation, a motor vehicle#8217; covers not only all the book, 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 deadlines set the management, vehicle in motion. To operate a motor vehicle, it is deadlines not necessary that the engine be running. The intentional as opposed to accidental manipulation of any mechanical part of the difference essay, vehicle, or the dissertation deadlines, use of any electrical agency which alone or in sequence will set in motion the mode of on bipedalism, power of the dissertation deadlines, vehicle is sufficient in law to leadership constitute operation. A person operates a motor vehicle, within the meaning of the law, when, in the vehicle, he intentionally does any act or makes use of deadlines, any mechanical or electrical agency, which alone or in sequence, meaning taken together with other acts, will set in motion the motive power of the essay on bipedalism, vehicle. The Commonwealth need not prove the defendant#8217;s intention after occupying the driver#8217;s seat.#8221; 11. We also reject the deadlines, defendant#8217;s argument that #8220;a stopped engine instruction#8221; was required because the engine was stopped, and the stop was not incidental to the operation of the critics, vehicle. See Commonwealth v. Cavallaro, 25 Mass.App.Ct.

605, 609 (1988), quoting from dissertation Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. c. 90, § 24, includes #8220;at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation#8221;). Such an instruction was inappropriate here where the Commonwealth#8217;s theory was that the defendant was operating the vehicle by putting the essay lost love, key in the ignition and turning it. This theory did not depend on any previous operation of the vehicle. 12. The defendant admitted at trial that he had consumed at least ten White Russian drinks that evening and dissertation, was #8220;highly intoxicated.#8221; Furthermore, the 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. Essay Lost Love? The arresting officer testified that the dissertation, vehicle was parked on poisonwood criticism essay, the street in front of a restaurant. 14. The defendant also argues that the Commonwealth failed to deadlines meet its burden by not introducing sufficient evidence that the defendant#8217;s friend was not the person operating the vehicle.

See Commonwealth v. Essay? 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). Dissertation Deadlines? 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 on bipedalism, June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for dissertation, the final pretrial hearing), and September 14, 2005 (the actual date of the final pretrial hearing). 16. The defendant#8217;s trial on an unrelated charge began on October 5, 2006. The excluded period extends until fourteen days after sentencing. See Mass.R.Crim.P. 36(b)(2)(A)(iii). Due to a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the trial, and another delay between the second portion of the trial and sentencing, the defendant was sentenced on medical malpractice, March 24, 2006.

Adding fourteen days to the sentencing date brings the deadlines, date to April 7, 2006. Thus, the hotel service quality, total excludable period for the unrelated charge is 185 days from October 5, 2006, to April 7, 2006. 17. Having identified a sufficient number of excluded days to confirm compliance with the deadlines, requirement for essay, a speedy trial, we do not compile a complete list of all excluded days. 18. Dissertation? The defendant also appeals from the denial of his pro se motion to essay dismiss under G.L. c. Dissertation Deadlines? 276, § 35. Assuming, arguendo, that the judge denied the motionthere is hotel service quality no record of such rulingand that this issue is properly before this court, we affirm. Dissertation Deadlines? General Laws c. Malpractice? 276, § 35, applies only to mid-trial continuances and the delay complained of by the defendant is prior to the commencement of dissertation deadlines, trial and, thus, does not fall within the statute.

A District Court jury found the defendant guilty of motor vehicle homicide by leadership management, 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. Dissertation? 90, § 24[2][a]). Essay Lost Love? 75 Mass. App. Ct. 643. Appeals Court of Massachusetts, Bristol. Argued March 6, 2009. Decided November 2, 2009. Paul C. Dissertation Deadlines? Brennan, Dalton, for the defendant. David J. Gold, Assistant District Attorney (Garrett R. Fregault, Assistant District Attorney, with him) for the Commonwealth.

Present: GRAHAM, DREBEN, #038; SIKORA, JJ. [75 Mass. App. Ct. Leadership Management Essay? 644] A District Court jury found the defendant guilty of motor vehicle homicide by operation under the dissertation deadlines, 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 hotel quality African-American, appeals upon dissertation deadlines, claims that (1) the trial judge improperly allowed the service thesis, Commonwealth#8217;s peremptory challenge of the only African-American in the venire; (2) the trial judge improperly admitted evidence of the defendant#8217;s blood alcohol content and erroneously instructed the jury on that evidence; and dissertation deadlines, (3) calculated improprieties by the prosecutor and extraneous influences upon the jury resulted in essay, reversible error. We reverse. The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the judge erroneously admitted evidence of the defendant#8217;s blood alcohol content without the requisite expert testimony and gave an dissertation deadlines erroneous jury instruction in relation to that evidence. Procedural background.

On February 3, 2004, the leadership management, New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of G.L. c. Dissertation? 90, § 24(2)(a). On June 1, 2004, the same court issued an additional complaint charging the defendant with motor vehicle homicide by service thesis, operation under the influence and deadlines, negligent operation (in violation of G.L. c. Poisonwood? 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the dissertation, Commonwealth#8217;s motion to amend the June 1 complaint to add an alternate theory of intoxication, a 0.08 percent #8220;per se#8221; 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 the motor vehicle homicide charge and a consecutive sentence of two years in the house of correction on leadership management, the negligent operation charge.

In December of dissertation deadlines, 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 medical malpractice essay, 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. Deadlines? On November 27, 2003, at approximately 8:30 P.M., the defendant#8217;s jeep and the victim#8217;s vehicle collided at an intersection in New Bedford. Hotel? Four people witnessed the collision, and each of them testified at trial. According to the witnesses, the defendant#8217;s jeep went through a stop sign at a high rate of speed and struck the victim#8217;s vehicle. A New Bedford police officer arriving at dissertation deadlines the scene after the accident saw the defendant pacing back and poisonwood bible essay, forth in an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at dissertation deadlines the scene from multiple traumatic injuries. Paramedics took the essay on bipedalism, defendant to the nearest hospital for dissertation deadlines, treatment.

Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash. She analyzed the damage to on bipedalism the vehicles and made numerous measurements of the crash scene. Based on her investigation, the expert concluded that the defendant#8217;s jeep had been traveling at dissertation deadlines 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 #8220;angry [and] agitated#8221; and his breath smelled of essay lost love, alcoholic beverages. He told the officers that he had consumed #8220;a forty of OE,#8221; a forty-ounce bottle of Olde English brand beer. Both officers testified that the defendant#8217;s demeanor changed when one of the officers notified him of the victim#8217;s death.

While at the hospital, the defendant complained of pain in his chest. In response to his complaint, hospital staff drew a blood sample from him and analyzed it. Dissertation? The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the reading translated to a whole blood alcohol level of .15 to .16. Discussion. 1. 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 essay, judge that she was diabetic. The judge assured her that the disease would not be a problem. The juror noted also that her son had faced criminal charges in New Bedford District Court. She stated, however, that she could be a fair and impartial juror. The judge seated her conditionally in the jury box in advance of the parties#8217; challenges. The next day, the Commonwealth invoked one of its peremptory challenges to deadlines exclude juror. The judge noted that juror nineteen was the only African-American in essay on bipedalism, the jury pool from either day.

She asked the Commonwealth to explain the deadlines, challenge. In response, the prosecutor gave two reasons: (1) the juror#8217;s speech and essay, mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of a three- or four-day trial; and (2) the prosecutor#8217;s discomfort caused by dissertation, the juror#8217;s fixed stare at him during empanelment.5 The judge then determined that the prosecutor#8217;s explanation was not race-based. [75 Mass. App. Essay Lost Love? Ct. 647] Defense counsel asked for the judge#8217;s impression of juror nineteen. The judge stated that the juror had #8220;somewhat of a halting speech pattern#8221; and was #8220;not incredibly articulate but #8230; not inarticulate either.#8221; The judge did not, however, #8220;associate [the juror's speech] with slowness mentally.#8221; The prosecutor explained that he believed that juror nineteen#8217;s mental acuity was similar to that of deadlines, another juror whom the judge had removed for cause.

The judge did not agree that juror nineteen suffered from hotel service quality a similar disability, but she allowed the Commonwealth#8217;s peremptory challenge without further reasoning at that time.6 Defense counsel objected. Dissertation Deadlines? On the following day, before the essay on bipedalism, jury had entered the court room, the judge commented further on the Commonwealth#8217;s peremptory challenge of juror nineteen. She stated that, after the previous day#8217;s discussion, she had consulted decisions on peremptory challenges of. members of dissertation deadlines, protected classes,7 and that she #8220;wanted to put some more #8230; findings on the record.#8221; She recounted that she had requested an essay explanation for the peremptory challenge, and she repeated the prosecutor#8217;s explanation. She noted also that the dissertation, applicable case law requires #8220;a two prong analysis. One having to do with the adequacy of the Commonwealth#8217;s position once having been questioned about the reason for the challenge and then the difference essay, genuineness of that.#8221; Although the prosecutor had not mentioned the dissertation, criminal. [75 Mass. Criticism? App. Ct.

648] history of juror nineteen#8217;s 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 #8220;I find #8230; the Commonwealth#8217;s explanation both adequate and genuine, which is dissertation why I allowed the challenges to stand.#8221; Article 12 of the Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of difference leadership management essay, peremptory challenges to exclude prospective jurors on dissertation deadlines, the basis of race. See Commonwealth v. Essay? Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). #8220;[W]e begin with the presumption that a peremptory challenge is proper.#8221; Commonwealth v. Smith, 450 Mass. 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct. Dissertation Deadlines? 202, 172 L.Ed.2d 161 (2008). However, one may rebut that presumption through proof #8220;that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.#8221; Commonwealth v. Poisonwood Bible Criticism? Soares, 377 Mass.

461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the issue of the propriety of the challenge. Deadlines? See Commonwealth v. Maldonado, 439 Mass. 460, 463, 788 N.E.2d 968 (2003). Essay Lost Love? When #8220;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.#8221; Id. at 463 n. Dissertation? 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 #8220;pertain[s] to the individual qualities of the prospective juror and not to that juror#8217;s group association.#8221; Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. If the proponent#8217;s. Service Quality Thesis? [75 Mass.

App. Ct. 649] explanation seems superficial, the deadlines, judge. should also allow rebuttal from the adverse party. Hotel Service? See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000). The judge must then #8220;make an independent evaluation of the dissertation deadlines, [proponent's] reasons and #8230; determine specifically whether the explanation was bona fide or a pretext.#8221; Ibid. #8220;In other words, the judge must decide whether the explanation is both `adequate#8217; and malpractice essay, `genuine.#8217;#8221; Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. Dissertation? 422, 428, 765 N.E.2d 725 (2002). #8220;[I]t is imperative that the record explicitly contain the judge#8217;s separate findings as to both adequacy and genuineness and, if necessary, an explanation of those findings.#8221; Commonwealth v. Maldonado, supra at difference leadership 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass.

212, 221, 892 N.E.2d 314 (2008). In this case, the trial judge raised the question of the propriety of the peremptory challenge. She appropriately requested an explanation from the prosecutor (the proponent of the challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at deadlines 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 26, 725 N.E.2d 182. Medical Malpractice? The prosecutor explained that he was challenging the juror because he believed her to dissertation deadlines be #8220;slow#8221; and because she had stared at him in a discomforting manner.

The judge received defense counsel#8217;s opposing response. She then stated that, although the medical malpractice essay, juror had #8220;a halting speech pattern,#8221; she did not find the juror mentally slow. However, the judge concluded that the deadlines, prosecutor had not misused the challenge and essay, allowed it. It was not until the next day that the judge explicitly found the dissertation, prosecutor#8217;s explanation to be adequate and genuine. The judge#8217;s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and essay, timely explanation for allowance required by the line of cases culminating in dissertation deadlines, Commonwealth v. Benoit, supra. As in Commonwealth v. Maldonado, supra, and Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the essay lost love, challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor#8217;s explanation of the peremptory challenge. See Commonwealth v. Dissertation? Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor#8217;s peremptory challenge where judge. [75 Mass. App. Ct.

650] requested explanation and then allowed challenge but #8220;did not find that the leadership management essay, prosecutor had met her burden of establishing an dissertation adequate, race-neutral explanation that was the genuine reason for the challenge#8221;); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant#8217;s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and essay lost love, genuineness of reason for peremptory challenge). In sum, the dissertation, record contains references to three possible grounds for difference leadership essay, disqualification of the juror: her staring at deadlines the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney#8217;s office.9 The judge did not address. the ground of difference leadership, 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 deadlines, specific, clear findings upon adequacy and genuineness required by the cases to essay lost love sustain the peremptory challenge. In particular, the judge did not find either of the prosecution#8217;s grounds adequate, i.e., #8220;personal to the juror and not based on deadlines, the juror#8217;s group affiliation#8221; and #8220;related to the particular case being tried,#8221; however genuine or bona fide the offer may have been. Commonwealth v. Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968. The governing standard is on bipedalism demanding. Deadlines? The precedents require reversal of the convictions. 2. Evidence of blood alcohol content.

The Commonwealth. [75 Mass. App. Ct. Essay Lost Love? 651] began trial with two theories of deadlines, operation under the hotel service quality, influence, the per deadlines, se theory (blood alcohol content of 0.08 percent or greater) and the impaired operation theory. At the beginning of the trial, the judge gave preliminary instructions to the jury in which she explained the nature of the charges against the defendant.

She made no reference to alternate theories of operation under the influence. During the trial, the Commonwealth introduced evidence of the defendant#8217;s blood alcohol content but offered no expert testimony to explain the relationship between blood alcohol content and impaired operation. During the charge conference, the Commonwealth requested jury instruction on both theories. Medical Essay? The judge stated that she was inclined not to give an instruction on the per se theory, and the Commonwealth agreed with that proposal. The judge instructed the jury, in relevant part, as follows: #8220;The law says that if the percentage of dissertation, alcohol by weight in the defendant#8217;s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of hotel service quality, intoxicating liquor at the time.#8221; For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the deadlines, prosecutor#8217;s reference to it in his summation, or the judge#8217;s erroneous instruction. Essay Lost Love? In 2003, the Legislature amended both G.L. Dissertation? c. 90, § 24G, the motor vehicle homicide statute, and G.L. c. 90, § 24(a)(1), the operation under the influence (OUI) statute, to add the per se theory of intoxication. St.2003, c. 28, §§ 1, 21, 22. Pursuant to the amendments, the Commonwealth may prove intoxication through evidence that the defendant had #8220;a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater.#8221; G.L. c. 90, § 24G(a). Prior to the amendments, the critics, 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. Deadlines? See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. Essay Lost Love? 1009, 902 N.E.2d 368 (2008). In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the deadlines, Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App.

Ct. 652] absence of expert testimony to book explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: #8220;If #8230; the Commonwealth were to proceed only on a theory of impaired operation [instead of both a per dissertation deadlines, se theory and an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of its relationship to intoxication or impairment and without the statutorily permissible inference of hotel service quality, intoxication eliminated by deadlines, the 2003 amendments, the jury would be left to guess at its meaning.#8221; Ibid. As for trials where the Commonwealth relies on both theories, the decision states further: #8220;[I]f the per se and impaired ability theories of criminal liability are charged in the alternative #8230; and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the essay lost love, test level to the degree of intoxication or impairment of the defendant. In such a case, the jury presumably would be instructed that if they find the defendant operated her motor vehicle with a blood alcohol content of .08 or greater, she is guilty of violating the OUI statute, and if they do not so find, they may still consider whether she violated the statute by operating while under the influence of intoxicating liquor.#8221; Id. at 817, 864 N.E.2d 498. We presume that this language applies to the results of blood tests in addition to deadlines the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant#8217;s objection, admission of the results required reversal.

Id. at service quality 664, 885 N.E.2d 164. Deadlines? In this case, the complaint charged both theories. Hotel Thesis? The judge admitted evidence of the defendant#8217;s blood alcohol content without expert testimony to deadlines explain its relationship to intoxication. The judge did not instruct the jury on the per se theory. Hotel Quality? Furthermore, the judge erroneously instructed the jury on the permissible inference of intoxication eliminated by the 2003 amendments.

See. [75 Mass. App. Ct. 653] Commonwealth v. Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. Dissertation Deadlines? 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to the alleged errors, we review for the substantial risk of a miscarriage of justice. Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of guilt. Commonwealth v. 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. Essay? 290, 297, 780 N.E.2d 58 (2002). Even without the blood test, the Commonwealth#8217;s evidence of intoxication was strong.

The percipient witnesses testified that the defendant drove through a stop sign at a high speed and deadlines, hit the victim#8217;s vehicle. A police officer who was at the scene testified that the medical, defendant was agitated, although he testified also that he did not notice any other signs of dissertation, intoxication. The accident reconstruction expert testified that the defendant#8217;s 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 supervisor#8217;s testimony that the medical, defendant had a blood alcohol content between .15 and dissertation deadlines, .16 percent may have been the most compelling evidence of intoxication. Critics? Without it, the Commonwealth#8217;s evidence was #8220;strong but not overwhelming.#8221; Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Here, as in Hubert, police testimony about the deadlines, defendant#8217;s signs of intoxication differed. Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at 13, 712 N.E.2d 575. [75 Mass. App.

Ct. 654] Conclusion.14,15 For the foregoing reasons we reverse the judgments and set aside the verdicts. Essay? The case is remanded to the District Court for dissertation deadlines, a new trial or other proceedings consistent with this opinion. 1. Hotel Service Thesis? In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by deadlines, negligent operation in violation of G.L. c. 90, § 24G(b). After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the essay on bipedalism, influence and by negligent operation (in violation of G.L. c. Dissertation Deadlines? 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 essay on bipedalism prove operation under the influence: (1) operation #8220;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.#8221; G.L. c. 90, § 24G(a), as amended through St.2003, c. 28, § 21. See Commonwealth v. Deadlines? Colturi, 448 Mass. Essay Lost Love? 809, 810, 864 N.E.2d 498 (2007); Commonwealth v. Hubert, 71 Mass.App.Ct. Dissertation Deadlines? 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 essay lost love, June 1 complaint, the complaint alleged only the second theory. 3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth#8217;s motion to file a late notice of appeal from the grant of the defendant#8217;s motion for relief from an unlawful sentence. Deadlines? The Commonwealth#8217;s 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. She opined also that the defendant#8217;s jeep had struck a vehicle parked on the side of the road prior to the collision with the victim#8217;s vehicle. 5. In its entirety, the prosecutor#8217;s explanation was: #8220;Judge, she appears slow to me at side-bar in her speech and mannerisms and essay, while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at dissertation deadlines me, staring me down while we were at the side-bar; and it bothered me. But I do find that she#8217;s slow at poisonwood criticism side-bar speaking with her, in her speech; and I#8217;m concerned that this is a three or four day trial, a lot of witnesses; and I#8217;m concerned about dissertation deadlines, her ability to try the evidence.#8221; 6. The judge observed that the defendant had adequately preserved the issue for appeal. On Bipedalism? During the discussion of the challenge, the dissertation deadlines, judge asked the prosecutor why he had used another peremptory challenge on leadership management essay, juror fourteen. Dissertation Deadlines? On the previous day, the judge had asked juror fourteen, a white male, some questions at service thesis side bar, and dissertation, 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 #8220;look[ed] over the case law, particularly Commonwealth v. Mulder (phonetic), with respect to management the possibility of a peremptory challenge being used to exclude members of a [discrete] group#8230;.#8221; The reference (jumbled in transcription) most probably was the Maldonado decision.

8. The judge#8217;s reference to dissertation the criminal history of juror nineteen#8217;s son was as follows: #8220;I would also add that it was known to all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney#8217;s office and apparently came up#8230;. [A]nd I don#8217;t remember the case per management essay, se but she spoke about it. It apparently just happened last fall.#8221; The judge went on to say that she understood the Commonwealth#8217;s concern #8220;whether she could perform in a truly objective manner#8221; because her son had experienced the criminal justice process and subsequent incarceration. The record does not show any expression of deadlines, that specific concern by the prosecutor. 9. As mentioned above, in the next-day review of her reasons for allowance of the peremptory challenge, the judge referred to hotel service quality the experience of juror nineteen#8217;s son in the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the juror#8217;s son as justification for his peremptory challenge.

A judge may not supply her own reasons to justify a prosecutor#8217;s peremptory challenge. Dissertation? See Commonwealth v. Essay? 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). Deadlines? 10. That explanation had little chance of success. #8220;Challenges based on subjective data such as a juror#8217;s looks or gestures, or a party#8217;s `gut#8217; feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for book reviews, discrimination.#8221; Commonwealth v. Maldonado, 439 Mass. at 465, 788 N.E.2d 968.

11. This reasoning does not interfere with the authority of deadlines, a trial judge spontaneously to essay identify, establish, and rule upon a ground of disqualification independently of any challenge of either the Commonwealth or a defendant. 12. The charge conference and instructions to the jury in dissertation deadlines, the trial occurred in May, 2006. The Supreme Judicial Court released the Colturi decision in April 2007; and this court the quality, Hubert decision in May 2008. Therefore the judge and trial counsel did not have the benefit of those interpretations of the 2003 amendments. 13. Deadlines? 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. Here we have reviewed the issue under the less demanding standard of substantial risk and management essay, found the error again sufficiently serious to require reversal. 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal.

The extraneous influences were (1) a shout by the victim#8217;s mother at the defendant as the jurors left the courtroom on the first day of trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the jury#8217;s 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 #8220;killed#8221; the victim. The defendant asserts that the deadlines, prosecutor intended that the thesis, officers testify in this manner, in violation of the deadlines, judge#8217;s decision on a motion in limine. Essay On Bipedalism? No evidence supports the view that the mother#8217;s outburst or the accident site memorial overcame the judge#8217;s instructions for a verdict based strictly on the evidence. The claim related to the officers#8217; use of the dissertation, word #8220;killed#8221; fails also, because the judge gave immediate curative instructions. 15. The defendant presented no issue of criticism essay, a denial of the right to confrontation guaranteed by the Sixth Amendment to the United States Constitution by reason of the admission of the dissertation deadlines, blood alcohol test result. The rule of hotel quality thesis, Melendez-Diaz v. Dissertation? Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), has played no part in the appeal.

Massachusetts OUI Case Defendnat admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. Gerald W. GILMAN. Difference Leadership Management? Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED.

Andrew S. Robinson, Asst. Dissertation Deadlines? Dist. Atty. (orally), Franklin County DA#8217;s Office, Farmington, ME, for the State of essay lost love, Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Panel SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ. ? 1 The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the court imposed on Gerald W. Dissertation Deadlines? Gilman following his conviction at service thesis a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. Deadlines? ? 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 malpractice essay, imprisonment required by the statute. Deadlines? 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 #8220;all penalties and punishments shall be proportioned to the offense.#8221; Me. Const. art. I, ? 9. ? 2 Gilman cross-appeals, contending that, in difference essay, addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the. court erred in admitting a certified record from the Secretary of State declaring him to be a habitual offender, because doing so violated his constitutional right to confront witnesses against him as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. ? 3 The State#8217;s appeal is accompanied by the written approval of the Attorney General as required by 15 M.R.S. ? 2115-A(2-B), (5) (2009) and M.R.App. Dissertation? P. Essay Lost Love? 21(b). Because we agree with the State#8217;s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman#8217;s constitutional rights, we vacate only the sentence and remand for resentencing. ? 4 The facts are not in dispute.

On April 11, 2007, Gerald Gilman was stopped for speeding in the Town of New Sharon, three miles from his home. Dissertation? He had not been drinking. Gilman, a member of the local Elks Club, was returning from the club#8217;s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver#8217;s license was suspended, and at trial he testified that he knew he was suspended for reviews, an operating under the influence (OUI) conviction. In fact, Gilman#8217;s 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 dissertation trial over Gilman#8217;s objection, showed that he had been given proper notice of the on bipedalism, revocation. Dissertation Deadlines? ? 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). Critics Reviews? Section 2557-A, which was enacted as part of what is popularly known as #8220;Tina#8217;s Law,#8221; provides that in that circumstance #8220;the minimum fine . . . is $1,000 and the minimum term of imprisonment is dissertation 2 years, neither of which may be suspended by the court.#8221; 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. 606, ? A-11 (effective Aug. 23, 2006). ? 6 Gilman moved to dismiss the allegation of the poisonwood bible criticism essay, aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the dissertation deadlines, allegation would have reduced the charge to a Class D crime. See 29-A M.R.S. ? 2557-A(2)(A) (2008).3 At a hearing, Gilman argued that because there was no allegation that he was under the influence when he was stopped, it was irrational to aggravate the operating after revocation (OAR) charge with prior convictions for OUI.

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 essay, Confrontation Clause would be violated by the admission of a certificate issued by dissertation deadlines, the Secretary of State under seal declaring that (1) his right to medical malpractice essay drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and dissertation deadlines, (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman#8217;s motion for a judgment of acquittal, and hotel service, took the ultimate issue of dissertation deadlines, whether the State had met its burden of essay, proof under advisement. Gilman then filed a written. Dissertation Deadlines? argument asking the court to revisit its earlier rejection of his equal protection argument, and asserting that the medical malpractice, 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 dissertation, issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt. The decision further explained the essay lost love, court#8217;s reasoning on the Confrontation Clause issue and again denied Gilman#8217;s equal protection claim. Dissertation? On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Essay On Bipedalism? Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Dissertation? Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the hotel quality, State did not individually notify him that #8220;Tina#8217;s Law#8221; increased the penalties if he were to deadlines be convicted of OAR after it took effect. ? 9 On October 27, the critics reviews, court heard argument on Gilman#8217;s due process claim and denied it. Dissertation Deadlines? It then heard testimony relevant to the disproportionate punishment issue and sentencing from four witnesses: another member of the essay lost love, Elks Club, a psychiatrist who treated Gilman through the dissertation deadlines, United States Department of hotel thesis, Veterans Affairs, Gilman#8217;s sister, and Gilman himself.

At the dissertation deadlines, conclusion of the hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the essay, court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Gilman, as well as the manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in his claim that the mandatory two-year prison term would be unconstitutionally disproportionate, as applied to Mr. Gilman. ? 11 At a final hearing on December 11, the dissertation, court conducted the difference leadership management, statutorily required sentencing analysis on the Class C conviction and dissertation, sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of essay lost love, probation, 500 hours of community service, and a $1000 fine. See 17-A M.R.S. ? 1252-C (2009). Dissertation Deadlines? The State orally moved the court to correct what it viewed as an illegal sentence pursuant to M.R.Crim.

P. 35(a);4 the motion was denied orally and later in a written order. This appeal and cross-appeal followed. Poisonwood Bible? A. Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on the State#8217;s power to punish: #8220;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.#8221; Me. Const. art. Deadlines? I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the hotel service quality, Superior Court to impose an unsuspended prison sentence of at least two years.

29-A M.R.S. Dissertation? ? 2557-A(2)(D). Accordingly, the court#8217;s lesser sentence was facially illegal unless the book reviews, 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 dissertation, (2) because of Gilman#8217;s individual circumstances, the mandatory sentence was disproportionate to his offense, and therefore the statute is unconstitutional in this instance.5 Gilman#8217;s burden is significant, as #8220;one challenging the constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.#8221; 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 #8220;strong and convincing reasons.#8221; Town of reviews, 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 dissertation deadlines, offense, has been an open question. In discussing a closely related provision of section 9, we left it unanswered: Assuming, without deciding, that it may be possible in rare cases that a mandatory minimum sentence is cruel and unusual because of the characteristics of the individual or because of the manner in which the sentence is carried out, there was not enough information in this case for the trial court to reach that conclusion. State v. Worthley, 2003 ME 14, ? 7, 815 A.2d 375, 377 (footnote omitted).6. ? 15 This case requires us to answer the question left open in Worthley. For several reasons, we conclude that (1) section 9 requires only that a punishment be proportionate to essay lost love the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is deadlines proportionate to the offense that Gilman committed, and malpractice essay, (3) the sentence imposed by deadlines, the trial court was therefore illegal and. must be vacated.

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

See Joyce v. State, 2008 ME 108, ? 11, 951 A.2d 69, 72 (stating that #8220;it is a fundamental rule of essay on bipedalism, statutory interpretation that words in a statute must be given their plain and ordinary meanings#8221; (alteration in original) (quotation marks omitted)). Dissertation Deadlines? ? 17 Our prior decisions support this construction. In each case where a minimum mandatory punishment imposed by the Legislature has been challenged as disproportionate or cruel and unusual under section 9, we have rejected the challenge after considering the defendant#8217;s conduct.7 Only in Worthley did we refer to the characteristics of the individual offender, and then only to point out that we were not required in leadership management, 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 deadlines, 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 difference leadership management essay, 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. Dissertation Deadlines? See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (#8220;We have drawn the line of malpractice, required individualized sentencing at capital cases, and see no basis for extending it further.#8221;). Regarding the Federal Constitution, the First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to individualized sentencing. Dissertation? Legislatures are free to provide for mandatory sentences for particular offenses.. . . The mere fact that a sentence is mandatory and severe does not make it cruel and unusual within the leadership, meaning of the Eighth Amendment. Dissertation Deadlines? 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 poisonwood criticism, power to enact mandatory sentences.

See State v. Lane, 649 A.2d 1112, 1115 (Me.1994) (collecting cases). Implicit in those decisions is a recognition that the deadlines, Legislature may lawfully choose to remove a sentencing court#8217;s discretion when it determines it is appropriate to do so, subject only to the constitutional prohibition against punishment disproportionate to a given offense. The construction urged by Gilman would go far beyond what the language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature#8217;s establishment of a basic sentence, and a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant#8217;s individual circumstances in finding that a mandatory sentence is book critics disproportionate as applied to deadlines that person is simply reinstatement by judicial declaration of a sentencing court#8217;s ordinary discretion to malpractice essay 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 dissertation deadlines, sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to essay lost love impose less than the mandatory minimum sentence on deadlines, the ground that the mandatory sentence is quality thesis disproportionate as applied in a particular case. We do not read article I, section 9 to render the Legislature#8217;s authority to enact mandatory sentences a nullity.10. ? 21 Because we hold that the clause, #8220;all penalties and dissertation deadlines, punishments shall be proportioned to the offense,#8221; means what its plain language says, and medical, does not require consideration of the deadlines, individual circumstances of each offender, the sentence imposed on essay lost love, Gilman was illegal unless it. Dissertation Deadlines? was disproportionate to the crime he committed. B. The Two-Year Minimum Mandatory Sentence. ? 22 This Court #8220;always has the book critics, power and duty to dissertation uphold the difference, State and Federal Constitutions,#8221; and will #8220;protect the individual from an unconstitutional invasion of his rights by the legislative . . . Dissertation Deadlines? branch of essay, government.#8221; Dep#8217;t of Corr. v. Superior Court, 622 A.2d 1131, 1134-35 (Me.1993) (quotation marks omitted). Nevertheless, we recognize the primacy of the Legislature as #8220;the voice of the sovereign people#8221; in the area of crime and punishment: The fixing of an dissertation deadlines adequate criminal penalty is medical malpractice essay properly and legitimately a matter of legislative concern. It is not the deadlines, office of the judiciary to interpose constitutional limitations where none need be found.

Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to be avoided might then be a cruelty of constitutional dimensions. Poisonwood Bible Essay? It seems to us that the deadlines, interest of the legislature is paramount in the field of penology and the public safety. The legislature defines the contours of the crime itself, and sets the limits for punishment. . . . The underlying structure of the penal system is statutory; the coherence of the system is to essay on bipedalism 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) (#8220;The power of punishment is vested in the legislative, not in the judicial department. It is the deadlines, legislature, not the medical, court, which is to define a crime and ordain its punishment.#8221; (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and unusual as whether it #8220;is greatly disproportionate. . . and whether it offends prevailing notions of decency,#8221; Worthley, 2003 ME 14, ? 6, 815 A.2d at deadlines 376; whether it #8220;shocks the conscience of the public, or our own respective or collective sense of fairness,#8221; State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is #8220;inhuman or barbarous,#8221; State v. Heald, 307 A.2d 188, 192 (Me.1973).

Because the Legislature is #8220;the voice of the sovereign people,#8221; King, 330 A.2d at 127, and thus expresses the people#8217;s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the collective conscience of the people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the judgment of the Legislature is the book critics, collective judgment of the people. ? 24 Gilman was convicted of a Class C crime, punishable by a maximum of five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). Deadlines? 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 thesis endanger others by operating a motor vehicle while impaired, from continuing to drive under any circumstances.

A mandated sentence for that conduct on dissertation deadlines, the lower end of the zero-to-five-years scale is not the rare, extreme, or shocking case, and does not violate the proportionality requirement of 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 order to reach the result he seeks, we would be required to overrule our decision in State v. Chapin, where the same argument was advanced and rejected. Medical Malpractice Essay? 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was #8220;certainly strong enough#8221; to dissertation deadlines justify the imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to leadership management essay drive. Id. Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the dissertation deadlines, rational relationship of prior OUI convictions to reviews 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 defendant#8217;s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant#8217;s detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to the penalties Gilman would face if he chose to drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into law, and Gilman is presumed to know what the law is. See Houghton v. Deadlines? Hughes, 108 Me. Malpractice Essay? 233, 236-37, 79 A. 909 (1911). Dissertation Deadlines? Contrary to Gilman#8217;s argument, due process did not require that he be individually notified of the change in order to ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the book critics reviews, law in effect at dissertation the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in hotel thesis, 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 State stating that his privilege to operate had been revoked, that he had received proper notice of the revocation, and that he had three OUI convictions within the preceding ten years. As. Dissertation? 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 #8220;the certification served only to quality confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only routine, nontestimonial information.#8221; 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Dissertation Deadlines? Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the Supreme Court#8217;s decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that the admission of a chemist#8217;s certificate stating that an management essay analyzed substance was cocaine violated the Sixth Amendment, because although #8220;documents kept in the regular course of dissertation deadlines, business may ordinarily be admitted at trial despite their hearsay status. . . Malpractice Essay? that is deadlines not the case if the regularly conducted business activity is the production of hotel thesis, evidence for use at trial.#8221; Id. at 2538, 174 L.Ed.2d at dissertation deadlines 328 (citation omitted). ? 31 We recently analyzed the impact of medical essay, Melendez-Diaz on Tayman and concluded that Tayman remains good law.

State v. Murphy, 2010 ME 28, ? 26, 991 A.2d 35, 43. Tayman controls the result here and consequently Gilman#8217;s argument fails. Judgment of conviction affirmed. Dissertation Deadlines? Sentence vacated; remanded to hotel quality thesis the Superior Court for resentencing. 1 The statute provided: D. A person is guilty of a Class C crime if the person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for dissertation deadlines, violating section 2411 Criminal OUI or former Title 29, section 1312-B within the essay, previous 10 years. The minimum fine for a Class C crime under this paragraph is dissertation $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 any way that affects this case. P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases).

3 The statute has since been amended, though not in management essay, any way that affects this case. Deadlines? P.L. 2009, ch. 54, ? 5 (effective April 22, 2009) (codified at 29-A M.R.S. ? 2557-A(2)(A) (2009)). 4 The Rule provides: #8220;On motion of the . . . attorney for poisonwood criticism essay, the state . . . made within one year after a sentence is imposed, the justice or judge who imposed sentence may correct an illegal sentence or a sentence imposed in deadlines, an illegal manner.#8221; M.R.Crim. P. 35(a). 5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to bible essay the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and penalties on a continuum before deciding whether a particular penalty is constitutional, and deadlines, we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the difference management essay, protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and this Court have understood them to dissertation be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (#8220;The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . Service Thesis? . The Eighth Amendment#8217;s protection . . . Deadlines? flows from the basic precept of essay, justice that punishment for a crime should be graduated and proportioned to the offense.#8221; (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (#8220;In analyzing whether a sentence is cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to deadlines the offense and whether it offends prevailing notions of decency.#8221;); State v. Frye, 390 A.2d 520, 521 (Me.

1978) (#8220;A mandatory sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency#8221;); Tinkle, The Maine State Constitution: A Reference Guide (1992) at 43 (#8220;The interpretation of `cruel or unusual punishment#8217; also is informed by the requirement of proportionality.#8221;). Essay Lost Love? 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Dissertation Deadlines? 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 sale of leadership management, 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. Deadlines? Lubee, 93 Me. 418, 45 A. Essay? 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in particular case irrelevant); c.f. State v. Alexander, 257 A.2d 778, 783 (Me.

1969) (holding five-day sentence imposed by deadlines, court in its discretion for contemptuous #8220;reprehensible conduct#8221; not excessive or cruel or unusual). Essay On Bipedalism? 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 #8220;three strikes#8221; law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S.

304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for 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 maximum sentence should be suspended in arriving at a final sentence. Dissertation? 17-A M.R.S. Difference Management Essay? ? 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 dissertation deadlines, equitable power to #8220;grant reprieves, commutations and medical malpractice, pardons#8221; in individual cases. Me. Const. art. V, pt. 1, ? 11.

11 Discussing what would qualify as disproportionate under the Eighth Amendment, the Supreme Court used the hypothetical example of #8220;a legislature making overtime parking a felony punishable by life imprisonment.#8221; Ewing, 538 U.S. at 21, 123 S.Ct. Dissertation? 1179 (plurality opinion) (quotation marks omitted). 12 Title 29-A M.R.S. ? 2557 was repealed and replaced by P.L. 2005, ch. Essay? 606, ?? A-10, A-11 (effective Aug. Deadlines? 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. Gautier#8217;s 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 America, Eddie GAUTIER, Defendant. Criminal No.

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

Oscar Cruz, Jr., Timothy G. Watkins, Federal Defender#8217;s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. Essay? Weinreb, United States Attorney#8217;s Office, John A. Wortmann, Jr., United States Attorney#8217;s Office, Boston, MA, for United States of America. GERTNER, District Judge: TABLE OF CONTENTS. Deadlines? A. Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent. 2. Medical? Whether the Crime Defined by Prong (2) of § 32B Is a Violent. B. Whether the dissertation, 1998 Juvenile Offenses Were Committed on Different. 2. Whether the difference management, Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in the pocket of dissertation, defendant Eddie Gautier (#8220;Gautier#8221;) 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 medical malpractice inoperable gun did not constitute a crime under state law.

The federal government took up the case, charging Gautier with being a felon in dissertation, possession of medical essay, a firearm, pursuant to 18 U.S.C. Deadlines? § 922(g)(1), because of his prior record. Essay Lost Love? His prior convictions include two armed robberies from dissertation 1998, when he was 16, and a resisting arrest charge from 2001, when he was 20. (He is presently 27.) The Guideline sentencing range for Gautier, assuming a guilty plea, was 57-71 months. But the government wanted more punishment for Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (#8220;ACCA#8221;). See § 924(e) (applying the penalty to defendants with at least three previous convictions for violent felonies committed on separate occasions). I disagree.

In passing the ACCA, #8220;Congress focused its efforts on career offenders— those who commit a large number of poisonwood bible criticism, fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at least a potential threat of harm to persons.#8221; Taylor v. United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Dissertation Deadlines? Gautier#8217;s criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The. predicate offenses for the ACCA enhancement are the two serious juvenile offenses, and resisting. Essay? After two rounds of briefing and two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the statute. First, his resisting arrest conviction does not constitute a #8220;violent felony#8221; within the meaning of the ACCA. Second, and in the alternative, court records were ambiguous on the question of whether his 1998 offenses were #8220;committed on dissertation, occasions different from one another#8221; as the statute requires.

As a result, Gautier lacks the requisite three predicate offenses and book reviews, the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months#8217; incarceration, in dissertation deadlines, effect the Guideline felon in possession sentence, and three years#8217; supervised release, with a number of special requirements. This memorandum reflects the book reviews, factual and legal bases for that sentence. On the night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to dissertation 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 essay lost love, Archdale Housing Project in an unmarked police car approached the group.

One of Gautier#8217;s friends, Salome Cabrera, peered into dissertation the vehicle and medical malpractice essay, made movements toward his waistband. The officers exited the car, badges displayed, and walked to Cabrera. Dissertation? Cabrera then allegedly shouted #8220;get the burner#8221; (slang for gun), a comment Gautier claimed he did not hear, and the police responded by book critics, drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in Gautier#8217;s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on dissertation, February 8, 2006, and malpractice, indicted on February 15, 2006, on one count of felon in possession of dissertation, a firearm and one count of felon in possession of management, ammunition, both pursuant to 18 U.S.C. § 922(g)(1). Dissertation Deadlines? Subsequent to his arrest, he agreed to speak to federal agents and police investigators, admitted to possessing the gun, and divulged where it had come from. Indeed, according to his counsel, the defendant repeatedly offered to plead guilty to difference leadership essay the charge, but was advised against deadlines, it because of the possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for Gautier sought a pre-plea Pre Sentence Report (#8220;PSR#8221;). Critics? When the pre-plea PSR concluded that an ACCA enhancement was required, the defendant felt obliged to go to trial.

At trial, he fully admitted that he possessed a firearm and deadlines, that he had a prior felony conviction. His defense was that he had picked up the gun and held it momentarily, to keep it from a group of younger, intoxicated friends in difference leadership, a dangerous area of dissertation deadlines, Boston. The jury rejected his claim, convicting him of both counts on bible essay, July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an dissertation deadlines ACCA predicate, an issue raised in the defendant#8217;s objections to the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in essay on bipedalism, 1998 were clearly separate predicates. Dissertation? At the on bipedalism, final sentencing hearing on December 15, 2008, after reviewing the parties#8217; submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well.

Gautier#8217;s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the dissertation, Armed Career Criminal Act. That statute provides: In the case of a person who violates section 922(g) of this title and bible criticism essay, has three previous convictions by deadlines, any court referred to in section 922(g)(1) of difference leadership management essay, this title for dissertation deadlines, a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years#8230;. 18 U.S.C. § 924(e)(1). Gautier#8217;s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier#8217;s conviction for resisting arrest may not be a #8220;violent felony#8221; under the ACCA. Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the 1998 offenses were #8220;committed on occasions different from one another.#8221; A. On Bipedalism? Whether Gautier#8217;s 2001 Crime of Resisting Arrest under Mass. Gen. Laws Ch. 268, § 32B Is a Violent Felony. The ACCA defines #8220;violent felony#8221; as any crime punishable for dissertation deadlines, a term exceeding one year that #8220;(i) has as an element the use, attempted use, or threatened use of physical force against the person of medical essay, another; or (ii) is burglary, arson, or extortion, involves use of dissertation deadlines, explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.#8221; 18 U.S.C. § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is medical essay 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 issue is what the defendant was convicted of, or what he pled to, or what he admitted in the sentencing proceeding, not what he actually did. United States v. Shepard, 181 F.Supp.2d 14, 16 (D.Mass.2002).4 Where such a substantial enhancement is involved. as with the ACCA, the case law expressly cautions courts against engaging in a post hoc archeological dig of prior convictions to determine what really happened. Problems of interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for dissertation deadlines, ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge #8220;may not hold a minitrial on the particular facts underlying the prior offense,#8221; see United States v. Essay? Dueno, 171 F.3d 3, 5 (1st Cir.1999) (citing United States v. Damon, 127 F.3d 139, 144 (1st Cir.1997); United States v. Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may #8220;peek beneath the coverlet#8221; of the formal language to deadlines ascertain whether the management essay, 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 dissertation deadlines, the Supreme Court in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), is how far that #8220;peek#8221; can go. #8220;Not very far, is the hotel thesis, answer.#8221; 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 dissertation 142-46.) If the defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the hotel quality thesis, verdict. When a defendant#8217;s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the deadlines, plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at sentencing, and any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. Essay? 1254. Finally, if the relevant facts contained in the PSR are uncontested, the court may consider these as further admissions by the defendant.

See Dueno, 171 F.3d at 7; United States v. Dissertation? 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 medical essay, the record of Gautier#8217;s 2002 plea to dissertation the charge establishes that the hotel quality, plea was to the violent version of the dissertation deadlines, felony. Under the Massachusetts statute, a person is on bipedalism guilty of the offense if he knowingly prevents or attempts to deadlines prevent an officer from effecting an arrest by book critics reviews, #8220;(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.#8221; Mass. Gen. Laws ch.

268, § 32B(a). Deadlines? The government correctly points out that Prong (1) of this definition clearly defines an ACCA violent felony, as it #8220;has as an element the on bipedalism, use, attempted use, or threatened use of physical force against the person of another.#8221; 18 U.S.C. § 924(e)(2)(B)(i); see Gov#8217;t Sent. Dissertation Deadlines? Mem. Essay Lost Love? 3 (document # 62). Prong (2) of the resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier#8217;s colloquy, no plea agreement, and no other record indicating which type of 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 any #8220;peek#8221; at dissertation deadlines 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 hotel service thesis, it simply lists the offense and provides its full statutory definition.5 As there is no evidence that Gautier specifically pleaded guilty to the Prong (1) version of resisting arrest and as the. statute is structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA. It cannot.

1. Whether the Crime Defined by Prong (2) of dissertation deadlines, § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the language #8220;using any other means which creates a substantial risk of causing bodily injury to such police officer or another,#8221; Mass Gen. Laws. On Bipedalism? ch. 268, § 32B(a), does not explicitly #8220;ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another,#8221; 18 U.S.C. § 924(e)(2)(B)(i). Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)#8217;s specification of resistance by #8220;other means,#8221; 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 dissertation, second definition provided by the ACCA. Essay Lost Love? Since resisting arrest is dissertation deadlines obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the critics, use of explosives—the inquiry focuses on what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S. 192, 127 S.Ct. Deadlines? 1586, 1591, 167 L.Ed.2d 532 (2007).

The issue is whether resisting arrest #8220;using any other means which creates a substantial risk of essay lost love, causing bodily injury to such police officer or another,#8221; in the language of the Massachusetts statute, Mass. Gen. Laws. ch. 268, § 32B, #8220;involves conduct that presents a serious potential risk of physical injury to dissertation another,#8221; in the language of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the question seems to answer itself, but the Supreme Court has required more than a textual comparison of the criminal statute and the ACCA under the medical essay, 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 #8220;violent felony#8221; under the dissertation deadlines, residual provision of § 924(e)(2)(B)(ii). Where the offense in question is not one of difference leadership management essay, those enumerated in the statute, a court must determine not only (1) whether that offense #8220;involves conduct that presents a serious risk of physical injury to another,#8221; but also (2) whether the crime is #8220;roughly similar, in deadlines, kind as well as in degree of risk posed, to the#8221; enumerated offenses. Id. at 1585. The latter step is critical here. It requires a court to decide whether the offense in critics reviews, question typically involves #8220;purposeful, violent, and aggressive behavior#8221;—the defining feature of the enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to text, the court noted that the presence of the dissertation deadlines, enumerated offenses of burglary, arson, extortion and crimes involving explosives #8220;indicates that the statute covers only service similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.#8217;#8221; Id. Had Congress intended the dissertation deadlines, statute to bible criticism cover all crimes creating serious risk of dissertation deadlines, injury, it would have omitted the difference management essay, examples. As to history, the Court noted that in 1986 #8220;Congress rejected a broad proposal that would have covered every [such] offense.#8221; Id. at 1586.

Finally, the Court noted that this interpretation served the ACCA#8217;s purpose of #8220;punish[ing] only a particular subset of offender, namely career criminals.#8221; Id. at 1588: The listed crimes all typically involve purposeful, #8220;violent,#8221; and #8220;aggressive#8221; conduct#8230;. That conduct is deadlines such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim#8230;. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of book reviews, crimes which, though dangerous, are not typically committed by dissertation deadlines, those whom one normally labels #8220;armed career criminals.#8221; Id. at 1586-87 (citations omitted). In Begay, the Court assumed without deciding that drunk driving involves conduct that #8220;presents a serious potential risk of management, physical injury to another.#8221; Id. at 1584. Even so, it held under the second step of the analysis that a conviction for driving under the influence (#8220;DUI#8221;) falls outside the scope of the dissertation deadlines, residual clause because #8220;[i]t is simply too unlike the provision#8217;s listed examples for us to believe that Congress intended the provision to cover it.#8221; Id. at 1584. Moreover, the Supreme Court has held that in conducting this analysis, courts need not analyze #8220;every conceivable factual offense covered by essay lost love, a statute,#8221; but rather should consider #8220;the ordinary case#8221; of the offense. James, 127 S.Ct. at 1597. In the words of the First Circuit, I must evaluate the degree of dissertation deadlines, risk posed by #8220;the mine-run of book critics, conduct that falls within the heartland of the statute.#8221; United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of a firearm is not a violent felony under the ACCA because risk of physical harm does not #8220;often accompany[] the conduct that normally constitutes#8221; the offense); United States v. Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court#8217;s understanding that it had to consider #8220;what#8217;s the typical, usual type of dissertation, conduct#8221; constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence #8220;if and hotel, only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant#8217; of the dissertation, predicate offense#8221;); Winter, 22 F.3d at 20 (#8220;A categorical approach is not concerned with testing either the outer limits of statutory language or the medical essay, 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.#8221;).

To determine the mine-run of dissertation, 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 defendant#8217;s stiffening his arms and pulling one away for on bipedalism, a second to deadlines avoid being handcuffed constituted resisting arrest by critics reviews, a #8220;means which creates a substantial risk of causing bodily injury#8221; to dissertation deadlines 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 reviews 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition.

Commonwealth v. Grant, 71 Mass. App.Ct. 205, 210 n. 2, 880 N.E.2d 820 (2008). Dissertation? These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the mine-run of conduct criminalized by Prong (2) involves a lesser version of #8220;active, physical refusal to submit to the authority of the bible, arresting officers#8221;: paradigmatically, the stiffening of one#8217;s arms to resist handcuffing. Maylott, 65 Mass.App. Ct. at deadlines 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the on bipedalism, Prong (2) definition of resisting arrest #8220;presents a serious potential risk of physical injury to another.#8221; Stiffening one#8217;s arms to prevent handcuffing, the usual conduct prosecuted under Prong (2), sometimes does and dissertation deadlines, sometimes does not present a serious risk of injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to satisfy this part of the test. 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 #8220;violent felony#8221; for ACCA purposes) (#8220;While an leadership essay individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the statute also charges behavior which would arguably not cause serious personal injury.#8221;).

In Grandison, however, the Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one#8217;s arm free, is #8220;[t]he type of resistance [that] could have caused one of the officers to be struck or otherwise injured, especially at the moment [the defendant] freed his arm.#8221; 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 deadlines another, that form of on bipedalism, resisting arrest cannot fulfill the dissertation deadlines, second part of the Begay test. The crime is criticism essay not #8220;roughly similar, in kind as well as in degree of risk posed, to the#8221; enumerated offenses. Begay, 128 S.Ct. at 1585. First, looking to dissertation the degree of risk: Even if the medical, Grandison court is dissertation deadlines correct that stiffening one#8217;s arms and pulling away present a serious risk of harm to essay another, the dissertation deadlines, degree of that risk does not approach that posed by criticism essay, burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of dissertation, violence due to #8220;the possibility of a face-to-face confrontation between the burglar and a third party #8230; who comes to investigate.#8221; James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the #8220;powder keg#8221; rationale). The element of surprise that spooks a burglar into personal violence is not present where police are already in essay, the process of arresting a suspect.8 It is. measurably less likely that injury will result from the dissertation deadlines, stiffening of one#8217;s arms than that it will result from essay lost love a burglary, the setting of deadlines, a structure on management, fire, unlawfully demanding property or services through threat of harm, or the dissertation deadlines, detonation of explosive devices.9. Second, looking to the #8220;in kind#8221; test, whether Prong (2) resistance is similar in kind to the enumerated offenses: This inquiry requires me to determine whether the poisonwood criticism, offense involves #8220;purposeful, violent, and aggressive behavior.#8221; In Begay, the Court held that drunk driving does not fulfill the test because the offender does not possess the purpose or intentional aggression that characterizes the enumerated offenses.

128 S.Ct. at 1586-87 (#8220;[S]tatutes that forbid driving under the influence #8230; criminaliz[e] conduct in respect to which the offender need not have had any criminal intent at all.#8221;); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is dissertation not a crime of essay, violence because it is not intentional). But as the First Circuit recognized in United States v. Dissertation? Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall #8220;neither within the safe harbor of hotel service, offenses with limited scienter requirements and uncertain consequences (like DUI #8230;), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.#8221; Id. at 7 (citation omitted). Prong (2) resistance is deadlines such a crime. The First Circuit recently explained that #8220;all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to essay on bipedalism qualify as a `violent felony#8217; under ACCA.#8221; United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics.

It explained: The Supreme Court #8230; use[d] #8220;purposeful#8221; interchangeably with #8220;intentional.#8221; [Begay, 128 S.Ct.] at 1587-88. Dissertation Deadlines? Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as #8220;tending toward or exhibiting aggression,#8221; which in turn is defined as #8220;a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.#8221; Merriam-Webster#8217;s Collegiate Dictionary 24 (11th ed. Essay Lost Love? 2003). Violence may be defined as #8220;marked by extreme force or sudden intense activity.#8221; Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a #8220;crime of violence#8221; 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 deadlines be similar #8220;in kind#8221; to the enumerated offenses. Id. A similar conclusion obtains here.

To be sure, the Prong (2) form of resisting arrest is purposeful in essay lost love, that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to expose others to dissertation 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 #8220;crime of quality, violence#8221; under the career offender provision of the sentencing guidelines. 529 F.3d at dissertation 7-8. Leadership? A defendant who prostitutes minors #8220;is aware of the risks that the prostituted minor will face#8221; and the risk of dissertation, harm is #8220;easily foreseen by the defendant,#8221; id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to those around him. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses. Medical Essay? See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct.

2143 (noting that Congress considered burglary #8220;one of the `most damaging crimes to society#8217; because it involves #8216;invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and dissertation deadlines, valued possessions#8217;#8221; (quoting H.R.Rep. No. 98-1073, at 1, 3, 1984 U.S.Code Cong. #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by leadership management, the force or domination impulse that the First Circuit has held defines aggression, and dissertation, it lacks the extreme force and sudden intenseness required by the court#8217;s definition of violence. See Herrick, 545 F.3d at 60. Nor does it resemble those offenses previously held by medical, the First Circuit and the district courts in dissertation deadlines, its jurisdiction to constitute violent felonies or crimes of violence under the residual clause.

See United States v. Walter, 434 F.3d 30 (1st Cir.2006) (manslaughter); United States v. Sherwood, 156 F.3d 219 (1st Cir.1998) (child molestation); United States v. Fernandez, 121 F.3d 777 (1st Cir.1997) (assault and battery on a police officer); United States v. Schofield, 114 F.3d 350 (1st Cir.1997) (breaking and entering a commercial or public building); United States v. De Jesus, 984 F.2d 21 (1st Cir.1993) (larceny from essay 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 dissertation, battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Book Critics Reviews? Apr. 30, 2004) (breaking and entering a commercial building); United States v. Dissertation Deadlines? Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old). Essay On Bipedalism? And those cases predated Begay, when the standard for deadlines, finding an offense to be a #8220;violent felony#8221; was easier to satisfy. In light of the difference in aggression and violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the medical, enumerated offenses in the #8220;`way or manner#8217; in which it produces#8221; risk of injury. Begay, 128 S.Ct. at 1586. To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of these cases predate Begay.11 Begay. #8220;charted a new course in interpreting the deadlines, critical violent felony definition of the Armed Career Criminal Act.#8221; Williams, 529 F.3d at 6. Hotel Service Quality? Significantly, in dissertation, a recent post-Begay case in this court, Judge Zobel rejected the government#8217;s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a #8220;crime of violence#8221; under the essay lost love, 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 dissertation deadlines twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)). In another post-Begay case on difference, resisting arrest, the U.S. District Court for the District of Kansas held that the crime of dissertation deadlines, fleeing and eluding an service officer is not a crime of violence because #8220;the statute also charges behavior which would arguably not cause serious personal injury#8221; and because resisting arrest #8220;is not similar to the listed crimes set forth#8221; in § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at *2. Importantly, the district court so held despite the existence of a 2005 precedent concluding that the resisting arrest was a crime of violence. The court explained its about-face as required by Begay.

Id. at *2. In light of the Supreme Court#8217;s pronouncement in Begay, then, I find that the deadlines, Prong (2) version of resisting arrest is not a #8220;violent felony#8221; under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of one#8217;s arms, not the application of force to another. Even assuming that such conduct creates a serious potential risk of book critics reviews, physical injury, it certainly does not resemble the enumerated offenses either in degree of risk or in kind. The state court criminal complaint charges Gautier with the dissertation deadlines, full definition of resisting arrest.

Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Essay? Gautier has at most two statutory predicates—too few to dissertation trigger the fifteen-year mandatory minimum. B. Whether the 1998 Juvenile Offenses Were Committed on Different Occasions. 1. Legal Standard. That Gautier#8217;s resisting arrest conviction is not a violent felony is enough to preclude the critics, application of the ACCA enhancement. Deadlines? In the alternative, I find the poisonwood bible criticism essay, enhancement is also flawed for a second reason: his 1998 juvenile offenses were not #8220;committed on occasions different from one another#8221; as required to constitute independent predicate offenses.12 18 U.S.C. Dissertation? § 924(e)(1). The First Circuit has held that #8220;the `occasions#8217; inquiry requires a case-by-case examination of the totality of the circumstances.#8221; United States v. Stearns, 387 F.3d 104, 108 (1st Cir.2004). Factors in that examination include the #8220;identity of the victim; the type of crime; the time interval between the crimes; the location of the crimes; the continuity vel non of the defendant#8217;s conduct; and/or the apparent motive for the crimes.#8221; Id. As one would expect from Congress#8217; use of the word #8220;occasion,#8221; the service quality thesis, First Circuit has focused on dissertation deadlines, the element of time. The Stearns court summarized that the statute distinguishes between, on the one hand, #8220;a time interval during which defendant successfully has completed his first crime, safely escaped, and which affords defendant a `breather,#8217; viz., a period (however brief) which is devoid of criminal activity and in book reviews, which he may contemplate whether or not to commit the second crime,#8221; and on deadlines, the other, #8220;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.#8221;13 387 F.3d at essay 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. Deadlines? 21, 2007) (two robberies committed over five weeks apart against different victims in essay on bipedalism, different locations occurred on different occasions); United States v. Mastera, 435 F.3d 56, 60 (1st Cir.2006) (stalking and breaking and entering occurred on different occasions because they were committed on consecutive days); United States v. Mollo, No. Deadlines? 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 criticism essay, different occasions); Harris, 964 F.2d at 1237 (two assault and battery offenses qualified as separate predicate offenses because they occurred two months apart, even though they involved the same victim and defendant was convicted and sentenced for both on the same day); United States v. Deadlines? Gillies, 851 F.2d 492, 497 (1st Cir.1988) (armed robberies of thesis, different drugstores on consecutive days occurred on dissertation, different occasions for the purposes of the ACCA, even though defendant received concurrent sentences). 2. Whether the Inquiry Is Limited to Shepard-approved Source Material. Again, in order to apply the essay lost love, above legal standard to the facts of Gautier#8217;s 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 #8220;categorical approach#8221; to deadlines determining whether a prior conviction qualifies as a #8220;violent felony#8221; and thus predicate offense under the ACCA. Taylor v. United States, 495 U.S. Essay? 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the case of a guilty plea, the Court has limited district courts to #8220;the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.#8221; Shepard, 544 U.S. at dissertation 26, 125 S.Ct. 1254. The issue I confront here is whether this same source restriction applies to my consideration of whether two offenses were #8220;committed on occasions different from one another.#8221; 18 U.S.C. Essay Lost Love? § 924(e)(1).

The First Circuit has never ruled on dissertation deadlines, this issue. In a pre-Shepard case, the essay lost love, court #8220;express[ed] no opinion#8221; on the lower court#8217;s citation of Taylor for the proposition #8220;that district courts normally should not look beyond the dissertation, indictment when determining whether a prior conviction is the type countable under the ACCA.#8221; Stearns, 387 F.3d at 107. In that case, the defendant sought an evidentiary hearing to develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to essay forbid such an involved inquiry and denied his motion, but because the defendant accepted the judge#8217;s ruling without objection, the First Circuit held he could not raise the issue on appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the deadlines, First Circuit again declined to resolve the medical, issue. The defendant argued it was error for the district court to dissertation deadlines use facts gleaned from police reports and described in essay lost love, the PSR to find that two drug offenses disposed of on dissertation, the same day were in fact #8220;committed on occasions different from one another.#8221; Id. at 38. The court of appeals opted not to address his argument, finding that even counting the contested offenses as one the essay, defendant had enough predicates to trigger the ACCA.

Id. at 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. Dissertation Deadlines? The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the #8220;ACCA#8217;s use of the term `occasion#8217; requires recourse only to data normally found in conclusive judicial records, such as the date and essay, location of an offense, upon which Taylor and Shepard say we may rely.#8221; Id. at 286 (upholding trial judge#8217;s reliance on the PSR to find that three burglaries occurred on separate occasions where that information was derived from dissertation deadlines 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. Bible Essay? 280, 283 (4th Cir. Dissertation Deadlines? 2007) (assuming that the occasions inquiry can be conducted by reference to leadership management essay Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an dissertation deadlines ACCA enhancement where the court could not establish on the basis of critics reviews, Shepard-approved material that the predicate offenses were committed on different occasions. Id. at dissertation deadlines 279; see also United States v. Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant#8217;s sentence where the sequence of difference management essay, his predicate offenses was not established by Shepard-appropriate material).

The Tenth Circuit has held that a criminal sentence enhanced by dissertation, the ACCA should be vacated and remanded when it is unclear whether the sentencing court limited itself to Shepard sources in determining whether the hotel service thesis, defendant#8217;s prior crimes were committed on different occasions. See United States v. Deadlines? Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. Malpractice? 2005). Several district courts have come to the same conclusion. See, e.g., United States v. Carr, No. Dissertation? 2:06-CR-14-FL-1, 2008 WL 4641346, at criticism essay *2 (E.D.N.C. Oct.

16, 2008) (limiting the occasions inquiry to facts available in Shepard-approved material), including at dissertation least one court in hotel, a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and holding that the trial court #8220;properly reviewed the charging documents to determine that the offenses occurred on three separate occasions#8221;). By contrast, three circuits have held that the source restriction applies only to the violent felony inquiry and not to the occasions inquiry. The Sixth Circuit has been most emphatic: #8220;All of our opinions on this issue have involved consideration of the specific facts underlying the prior convictions. Indeed, we cannot imagine how such a determination could be made without reference to the underlying facts of the dissertation deadlines, predicate offenses.#8221; United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the poisonwood bible essay, decisional documents envisioned by Taylor, reasoning that these only 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 #8220;[a]s a practical matter#8221; that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is #8220;unsuited to a categorical approach,#8221; United States v. Dissertation? Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Leadership Essay? Importantly, however, these cases came down before the dissertation deadlines, 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 court#8217;s use of the PSR to determine that defendant had three predicates from different occasions for the ACCA). I find that the former approach is more faithful to the Supreme Court#8217;s rulings in Taylor and Shepard and makes sense in terms of the application of the very severe ACCA. As I explained in my remand opinion in Shepard, the hotel service thesis, Supreme Court#8217;s categorical approach #8220;caution[s] the judge against deadlines, becoming embroiled in a `daunting#8217; factual inquiry about what had actually happened at the time of the state offense.#8221; United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in on bipedalism, identifying countable predicate offenses where the dissertation deadlines, defendant did not go to trial is #8220;what did the quality, defendant plead to in the state court?#8221; Id. at deadlines 17. Where a defendant has not been found guilty by hotel, a jury, it is dissertation deadlines only fair to punish him for the prior conduct that he actually admits, either by pleading to the facts alleged or failing to object to them at sentencing.14.

In light of the Supreme Court#8217;s caution in this area and the judgment of the courts of appeals, I find that I am limited to #8220;the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and essay, any explicit factual finding by the trial judge to which the defendant assented#8221; in dissertation, determining whether the defendants prior offenses were committed #8220;on occasions different from one another.#8221; Id. at 16. 3. The 1998 Offenses. In the instant case, the only Shepard-approved sources available to medical malpractice me in deciding whether the dissertation deadlines, 1998 offenses occurred on different occasions are the hotel service, state court indictments and Gautier#8217;s plea tenders. The statutory definitions contain no elements that bear on the sequence of the offenses. The government can produce no plea colloquy transcripts from those cases.

And no additional underlying facts were incorporated into the PSR and dissertation, adopted by the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and specifically stating that police reports were not received). Malpractice Essay? While the plea tenders merely contain the defendant#8217;s and prosecutor#8217;s dispositional requests, several things are evident from the face of the indictments. In Suffolk Superior Court case no. 98-10175, the grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against dissertation deadlines, a victim named #8220;F.L.#8221; In Suffolk Superior Court case no.

98-10177, the grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and hotel service quality, battery with a dangerous weapon (water bottle) against one #8220;E.M.#8221; Both indictments alleged that he committed each offense on January 8, 1998. The indictments indicate that on January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.#8217;s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the deadlines, defendant committed these crimes against different individuals. But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims. Quality Thesis? Crucially, specific as they are, the charging documents do not reveal the location of the crimes, the dissertation, time interval between the offenses, or the continuity of the conduct. It is therefore not #8220;possible to discern the point at which the first offense is completed and leadership management essay, the second offense begins.#8221; United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008).

Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Deadlines? 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. Hotel Service Quality? Brown, 181 Fed. Appx. 969, 971 (11th Cir.2006) (noting that while #8220;the three qualifying offenses must be temporally distinct,#8221; separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990). As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on different occasions. See, e.g., United States v. Alcantara, 43 Fed.Appx.

884, 886-87 (6th Cir.2002) (three separate indictments for offenses all committed #8220;on or before November 30#8243; did not establish that the offenses occurred on dissertation, #8220;occasions different from one another#8221; for the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 2005) (holding that Shepard#8217;s source restriction governs determinations of whether prior crimes were #8220;related#8221; under the Sentencing Guidelines criminal history provisions, then ruling that the existence of separate indictments did not mean they were unrelated). This conclusion applies with the same force to the instant case. Prosecutors have wide discretion as to the form of criminal charging. Under Massachusetts Rule of Criminal Procedure 9(a)(2), the bible criticism essay, Commonwealth #8220;may#8221; charge two or more related offenses in the same indictment, and it may not.

The fact that the Suffolk County district attorney charged Gautier#8217;s 1998 offenses in dissertation, separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced #8220;a period #8230; devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,#8221; Stearns, 387 F.3d at 108, I cannot fairly conclude that he committed the service quality thesis, armed robberies #8220;on occasions different from deadlines one another.#8221; By the terms of the ACCA itself, the 1998 offenses do not provide more than a single predicate. Service Quality? 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. Dissertation Deadlines? § 2K2.1(a)(2). Difference Leadership Essay? While Gautier argues that he should get a two-point reduction for acceptance of responsibility under § # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. I consider this issue in connection with the 3553(a) factors (see below). Dissertation? While the government argues that the reviews, defendant committed perjury during his trial testimony, I do not agree and will not enhance under § 3C1.1. I also agree that Gautier#8217;s criminal history is category IV under § 4A1.1(d) and (e). The Guidelines range, then, is 63-78 months.

B. 18 U.S.C. § 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to be imminent harm to dissertation deadlines others, and because he has turned his life around while in custody. I can find no clear rationale for a variance on these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the difference management essay, purposes of dissertation, 3553(a) for the following reasons: 1. Nature and poisonwood, Circumstances of the deadlines, Offense. Essay? Gautier claims he took the gun from his friends because they were drunk and deadlines, behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found. Given his record, he should not have put himself in a position where the offense was even possible: in the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and essay lost love, momentary possession, not something he sought out at the time, or did regularly. Deadlines? 2. Deterrence; Public Safety.

Gautier cooperated with the authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by his counsel. He went to difference essay trial on the advice of his attorney to preserve his challenge to deadlines the ACCA.16 He plainly took responsibility for management essay, what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines. I found Gautier contrite at his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life. Gautier did not know his father as he was murdered when Gautier was four years old. Dissertation Deadlines? His mother remarried and the family then relocated from Puerto Rico, his birthplace, to service quality Providence, Rhode Island, and then to Boston after a fire damaged their home. This relationship did not last, according to Gautier#8217;s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of dissertation deadlines, his discipline problems.

He stayed there until age 16 when he returned to Massachusetts. DYS records reveal that at age 16 Gautier witnessed a good friend being stabbed in the chest and cradled his friend as he died. After this incident another good friend. died of complications relating to pneumonia. Soon thereafter, he was committed to DYS for a number of offenses. Essay? He was released on parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of their son Zion Edwards Gautier.

The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in ministry work, assisting fellow inmates and studying with the prison chaplain. Gautier spoke movingly of this work. Dissertation Deadlines? He indicated to Probation that he hopes to attend a college where he can continue these studies. Gautier thus presents a mixed picture: he has important strengths that might deter him from future offending, but also a track record of missteps that plainly require both punishment and assistance. Gautier has made efforts to give his life structure, but needs more.

I have required Probation to devise a recommended plan for him, both as a recommendation for the Bureau of Prisons during the period of his incarceration and as a template for his supervised release afterwards. Essay Lost Love? Studies suggest the significance on recidivism of a consistent plan, beginning in prison and extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. S.R. Dissertation Deadlines? 258 (2000). In addition to that plan, as a condition of supervised release, Gautier is to speak at high schools or to other young men identified by Probation as #8220;at risk.#8221; I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the low end of the essay lost love, Guidelines range that he would have faced, 57-71 months, had he been charged with felon in deadlines, possession, without the ACCA enhancement, and pled to that offense as he had wanted to leadership management essay do.17 That sentence combines the Guidelines#8217; values with those of § 3553(a). 1. The ballistics report observed that #8220;a portion of the trigger guard is deadlines broken off, the ejector rod collar is out of place, the ejector rod spring is defective, the essay lost love, ejector rod will not secure the dissertation deadlines, cylinder in the closed position, the cylinder hand is reviews not making contact with the cylinder, and deadlines, neither the trigger nor the hammer can be drawn back to the firing position. There is rust on the cylinder, the ejector, the crane, and essay lost love, the trigger. This weapon cannot be fired in its present condition and in my opinion it would require extensive work and new parts to return this weapon to a state in which it can be discharged.#8221; Boston Police Ballistic Unit Case Notes, Def.#8217;s Sent.

Mem., Ex. B (document # 60-2). 2. His prior convictions include offenses committed in the course of two armed robberies perpetrated on the same day in 1998; marijuana possession and distribution in 2001; resisting arrest and deadlines, trespassing in book, 2001; possession with intent to distribute marijuana in 2005; and attempted breaking #038; entering and possession of burglarious tools (screwdriver) in 2004. See Pre-sentence Report (#8220;PSR#8221;) ¶¶ 35-40. 3. Gautier made incriminating statements during the booking procedure, including #8220;You got me with the burner, I#8217;m gonna take a plea and dissertation, do a year#8221; and #8220;That#8217;s a separate charge?

Of course it#8217;s gonna have bullets in bible essay, it, it#8217;s a gun.#8221; He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were #8220;burglaries#8221; under the ACCA. The First Circuit reversed, holding that police reports could be considered if they #8220;constituted sufficiently reliable evidence of the government and the defendant#8217;s shared belief that the defendant was pleading guilty#8221; to a generically violent crime. Dissertation? United States v. Hotel Thesis? Shepard, 231 F.3d 56, 70 (1st Cir.2000). Deadlines? I then concluded that the central question was, what did the defendant plead to in state court, and essay lost love, that the police reports did not provide reliable evidence on that central question. Dissertation? United States v. Difference Leadership Management? Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). Dissertation Deadlines? The First Circuit again reversed, holding that the police reports could be considered and instructing me to essay 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 deadlines, 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. Essay Lost Love? United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word #8220;some#8221; for dissertation, the word #8220;any#8221; in #8220;any other means.#8221; This discrepancy is of no consequence in this case. 6. The court noted that the essay lost love, conduct could also constitute resisting arrest under Prong (1) of the statutory definition.

Id. at 719. 7. Deadlines? The government describes these as #8220;marginal or unusual examples of the crime,#8221; Gov#8217;t Sent. Mem. Essay On Bipedalism? 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at the very core of Prong (2) resistance. 8. Last month, the 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 deadlines, violent confrontation when law enforcement officials attempt to take the essay, defendant into custody. The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that #8220;it is an embarrassment to the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to dissertation the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences.#8221; United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against book critics reviews, an arresting officer.

In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an ACCA predicate offense. 10. The First Circuit has repeatedly held that #8220;[g]iven the similarity between the ACCA#8217;s definition of `violent felony#8217; and the definition of deadlines, `crime of violence#8217; contained in the pertinent guideline provision, #8230; authority interpreting one phrase is generally persuasive when interpreting the other.#8221; Williams, 529 F.3d at malpractice 4 n. 3; see also Damon, 127 F.3d at 142 n. Deadlines? 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. 3. 11. In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of whether a conviction for resisting arrest was a prerequisite #8220;crime of violence#8221; under the career offender guideline, U.S.S.G. Essay? § 4B1.1. He confessed #8220;hesitation#8221; based on dissertation, #8220;the uncertain impact of the Supreme Court#8217;s recent decision in Shepard#8221; and the fact that the resisting arrest statute #8220;allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.#8217;#8221; Id. at 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. Almenas, Judge Saylor denied without opinion the defendant#8217;s motion to exclude his resisting arrest conviction as a predicate offense for career offender status. In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on appeal at the First Circuit. See Almenas v. United States, No.

06-2513. Because the parties in that case have urged the court to remand the case on alternative grounds—namely, because the essay on bipedalism, district court judge understood himself to have less discretion than actually afforded him under Gall v. Dissertation? United States, ___ U.S. ___, 128 S.Ct. Difference Leadership Management Essay? 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. Deadlines? 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 #8220;[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the poisonwood criticism, arrest, creating the potential for serious physically injury to the officer and dissertation, others.#8221; Id. at 455. Medical? Because the dissertation deadlines, court made no attempt to leadership essay identify the type of conduct that usually underlies the deadlines, conviction, I do not know how the statute at hotel thesis issue there compares to the one at issue here. Finally, the Eighth Circuit held in United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a #8220;crime of violence#8221; 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 1055. 12. Dissertation Deadlines? The government urged me to consider this alternative holding, even though it had not fully briefed it, in order to avoid addressing this issue on difference management essay, a remand, in the event of dissertation deadlines, resentencing. 13. This view accords with the guidance provided to trial judges in other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because #8220;it is poisonwood essay possible to discern the point at which the first offense is completed and dissertation deadlines, the second offense begins#8221;); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on essay lost love, same night in separate doctor#8217;s offices 200 yards apart occurred on different occasions, because defendant #8220;made a conscious decision#8221; 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 #8230; 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 dissertation, the dispute raises the concern underlying Jones [v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)] and Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury#8217;s finding of any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S.

224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, #8220;the disputed fact here #8230; is medical malpractice too far removed from the conclusive significance of a prior judicial record, and dissertation deadlines, too much like the findings subject to Jones and essay on bipedalism, Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.#8221; Id. 15. In still another challenge to the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of his January 8, 1998 criminal episodes does not qualify as a #8220;violent felony.#8221; The argument proceeds in several steps. First, an offense is not a #8220;violent felony#8221; unless it is #8220;punishable by imprisonment for dissertation, a term exceeding one year,#8221; 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been #8220;set aside#8221; under state law, § 921(a)(20). In Massachusetts, a youthful offender#8217;s conviction is #8220;set aside#8221; when he is reviews discharged from deadlines Department of Youth Services (#8220;DYS#8221;) custody.

See Mass. Medical Malpractice Essay? Gen. Laws ch. 120, § 21. Dissertation? Gautier notes that for one of the two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at leadership management essay age 21. Based on the foregoing reasoning, he argues, the offense cannot stand as a violent felony under the ACCA. The ACCA, however, is not absolute in refusing to count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony #8220;unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.#8221; § 921(a)(20). Where a defendant#8217;s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this #8220;unless clause#8221; is read to include restrictions applied by state statutory law.

See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. Dissertation Deadlines? Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Here, Gautier#8217;s discharge from DYS was accomplished by statute, Mass. Gen. Laws. ch.

120 § 16, so the state provision limiting those who have been convicted of a felony or adjudicated a youthful offender from obtaining a license to carry a firearm, id. at ch. 140 § 131(d)(i), applies to him. As a result, he cannot escape the ACCA sentencing enhancement through the essay lost love, § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a #8220;conditional plea,#8221; pleading guilty while preserving his legal arguments. Dissertation Deadlines? For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and book, admitted that he possessed the gun. He attempted to explain that possession to the jury. Given the enormity of the ACCA enhancement, I credit his counsel#8217;s advice and the motivation for the trying the case. 17.

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

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essay on maus Whether commentary [. ] is built into a structure of a history or developed as a separate, superimposed text is a matter of choice, but the voice of the commentator must be clearly heard. The commentary should disrupt the facile linear progression of the narration, introduce alternative interpretations, question any partial conclusion, withstand the need for deadlines closure [. ]Such commentary may introduce splintered or constantly recurring refractions of a traumatic past by using any number of different vantage points. Saul Friedländer, Trauma, Transference and Working-Through, History and Memory 4 (1992): 39-55. Copyright (c) 1995 by Robert S. Leventhal, all rights reserved. Hotel Quality! This text may be shared in dissertation accordance with the fair use-provisions of the leadership essay, U.S. Copyright Law. Deadlines! Redistribution and republication of this text on other terms, in any medium, requires the medical essay, written permission of the author. Trauma, Working-Through, and the Problem of Historical Understanding.

In the dissertation, Neo-Freudian Theories of Winicott, the attempt has been made to articulate the process of working-through the traumatic loss of the leadership management, beloved object more precisely. Winicott's famous phrase Mourning without empathy leads to madness has often been cited as the key to his theory, which is that there must be an empathetic witness to the pain of this traumatic loss, that the person who suffers this loss must be able to give testimony to someone as a way of working-through or processing this loss, and that finally certain transitional or intermediate objects might be necessary in order to move from the state of dependence and reliance on the Other to a renewed state of self-sufficiency after the dissertation deadlines, traumatic severance. The difficulty with this type of understanding is its insistence on a singular empathetic Other who hears the testimony of the witness, and thereby bears witness to the traumatic loss in essay lost love a therapeutic manner. What does it actually mean to work-through a traumatic loss? and dissertation what does this mean with regard not to an individual, but to an entire people? Many of the normative claims of psychoanalysis are present in this type of approach: the hope is that a gradual reintergration of the meaning of the lost object occurs and the fact of the essay lost love, loss helps the subject to grow beyond this dependency in dissertation the construction of book critics a self that is able to tolerate and understand alterity and is not rigidly defined.

This is the thesis of Eric Santner's Stranded Objects. Cultural Besetzung : The Canon and Canonical Texts. One of the ways in deadlines which a culture betrays (in the sense of leadership management essay allows to become clear) its own investments or Besetzungen , to use Freud's term for the psychic endowment of certain things, is in its priveleging specific ways of thinking and dissertation writing, certain forms of presentation, the selection of specific genres as being apt or appropriate for certain tasks. An analysis of Steven Spielberg's Schindler's List could show that the primacy of the (visual) romance in some way governs the institution of filming in that film. Essay On Bipedalism! There is a vast difference in this respect to Claude Lanzmann's Shoah and to dissertation Hans-Jürgen Syberberg's Hitler, Ein Film aus Deutschland. As Primo Levi sought to quality thesis articulate the dissertation deadlines, discursive and logistical space of Auschwitz, Syberberg attempts to actually enter into the distorted puppet-show of German Fascism, the black studio of critics German (film) projections and fantasies, the nostalgiac, melancholic state of Postwar, Postholocaust Germany. Lanzmann's Shoah equally does away with conventional narrative schemes and totalizing representation, presenting the dissertation deadlines, Nazi Genocide in essay on bipedalism a series of detailed researches or inquiries, and utilizing not a single foot of documentary film from the thirties or forties.

Lanzmann's film allows the contradictions between the testimony of the perpetrators and that of the victims to stand. It neither escapes into dissertation false or coerced reconcilations, nor does accept the validity of unreflected testimony unquestioningly. The way in which a culture organizes, disciplines, and reads a certain event is an excellent way to find out critics reviews about that culture's troubled areas or hot spots. The philosopher Berel Lang has argued in his book Act and Idea of the Nazi Genocide that there are only certain appropriate and ethically responsible ways of representing the dissertation, Shoah. In this respect, many crtics have said that the Holocaust requires an elevated genre, that it is the stuff of high literature and should not be desecrated by allowing low genres to communicate the destruction of the European Jews. There would at first sight seem to be an inalterable cultural hierarchy of forms, media, genres: the novel, the tragedy, a poem, a scholarly essay or book might be considered acceptable; on the other hand, a satire, a parody, a comedy, a farce -- these would not seem to be eligible for appropriate forms of literary representation. But the fact is that both within these genres and modes, as well as with regard to the genre or mode itself, there are both high and low forms; and what is radical, chic, or revolutionary at hotel quality one historical juncture might be quite reactionary or conservative at another. My view is that Spiegelman, precisely by utilizing the dissertation, comic-book as the quality, textual medium of a story of the Holocaust, succeeds in breaking the taboo or ritualized fixity of confronting the Holocaust.

It also subverts the assignment of the comic to a genre of deadlines kitsch and popular culture in essay lost love a twofold way: first, insofar as it supercedes the traditional genre in terms of the scope of its presentation; secondly, insofar as it presents a historical catastrophe in a medium usually reserved for hero-construction and morality play. Spiegelman's Maus : The Intentional Subversion of dissertation deadlines Genre and Cultural Norm. Art Spiegelman first published parts of MAUS in the magazine Raw between 1980-1991. Volumes I and II of the book Maus: A Survivor's Tale appeared in 1986 (My Father Blleds History) and 1991 (And Here my Troubles began). Maus is the use of a traditionally low genre -- the comic strip or book --for serious, grave material. It is hotel service, a conscious, intentional inversion of a norm, a hierarchy, a cultural order. It is deadlines, a very strong (in the Bloomian sense) rereading of book one survivor's tale and deadlines the transmission or testimony of this tale to the son; it is at the same time a strong revamping or reconsideration of the generic possibilites of the comic itself. The reduction of the players to cats (the Nazis). mice (the Jews), pigs (the Poles) and other national stereotypes offers a conscious, intentional miniaturization and reduction, pointing up not merely the reviews, process of compression, simplification and dissertation devaluation not merely of the Nazi's practices before and during the hotel service quality, Holocaust, but the reduction and simplification present in many responses to the Holocaust aswell.

In this way, Spiegelman literalizes the call for petits recits so prevalent in postmodern discourse today, especially in the writings of dissertation Jean-Francois Lyotard. On another level, there are multiple narratives and kinds of texts in Maus : in addition to images, dialogue boxes, and commentary, we find maps of Poland and the Camps, diagrams of hideouts, real photographs from the difference leadership management essay, family archive, detailed plans of the crematoria, an exchange table for goods in deadlines Auschwitz, and a manual for shoe-repair. Here are some of the various text-types that one finds in Maus : The reader moves through several different historical subject-positions and narrated events; there are the pre-holocaust, the Holocaust, and the postholocaust, but also, within one time-frame, there can be other times and places co-present as well. Maus thus juxtaposes and intertwines past and essay lost love present, the different subject histories of each protagonist, and dissertation deadlines the very different cultural contexts of Nazi occupied Poland and Rego Park, New York. The very title of the leadership essay, books is a powerful reworking of the convention: Maus rewrites the cultural norm and invents a new discursive space to address the questions of Jewish trauma, guilt, shame and, perhaps most importantly, the transmission of these conflicts from one generation to the next, especially in the case that they are not sufficently worked-through. Maus encompasses many small narratives: not merely the story of Vladek (Artie's Father) and Anje (Artie's Mother, who committed suicide after surviving Auschwitz and coming to America), but of Artie himself in his struggle to understand his family origins and himself.

It addresses the constant resurfacing of a traumatic and unmastered past on a number of levels: the death of dissertation deadlines his brother, Richieu, of a poison given to essay lost love him by the woman who was taking care of him as they were about to be sent to Auschwitz to be gassed, the dissertation, suicide of his mother in 1968, and the murder of the European Jews. This is perhaps nowhere more evident than at the end of Volume I My Father Bleeds History, where Artie asks Vladek for Antje's diaries. Vladek first tells Artie that the essay, Diaries are gone, and then finally remembers that he himself had destroyed them -- burned them to dissertation be exact -- in the depths of depression. Vladek not only burned the diaries -- in essay lost love a ironic enactment of Nazi Book-Burning -- but he sadistically adds salt to the wound when he tells Artie: I looked in, but I don't remember [. ] Only I know what she said, 'I wish my son, whe he grows up, he will be interested in this.' Artie, who himself suffered a depression after his mother's suicide, calls Vladek a murderer, unable himself to understand Vladek's action as itself an act of acting out the legacy of the Holocaust. In this transmission circuit, Artie is tied to his father, and we see this played out in dissertation Maus in his complete dependence on Vladek for the narrative of his own story. The broken relationship between Artie, Vladek, and this unmastered past is exemplified in the broken relationship Artie has to his own Jewish heritage. In Maus I , Vladek is in a German work-camp and has a dream in which his dead Grandfather comes to him and difference leadership management tells him that he will leave this place and go home to his wife and child on Parshas Truma. Artie then asks his father what Parshas is, unaware of the symbolic and deadlines literal meaning of this in his life and in Jewish tradition. His father then explains to him the meaning of Parshas Truma, the specific week in which a particular section of the Torah is read.

It turns out that this was the reviews, week he had married Anja, and the week Artie had his Bar-Mitzvah. In this time frame, Vladek actually does get to leave the camp and see his wife and child. The broken circuit is thus restored in deadlines the text precisely because of poisonwood criticism Artie's interest in the narrative and dissertation deadlines the construction of the text Maus itself. But the evidence of a failure in the transmission of hotel quality culture and tradition, the traces of this broken connection to the past and to history is present to the extent that Artie must now relearn this complex history. Maus is dissertation deadlines, allegorical, not merely to the extent that it treats the individuals as figures in on bipedalism a much more complex and global story, but insofar as its very textual structure is comparable to the allegorical structure of the emblem, with a graphic image elucidating the text, as well as a superscript expressing the topic or theme, the actual statements of the individuals in deadlines the frame, and often a subscript containing unconscious thoughts or afterthoughts.

In Maus , the image is never left to medical malpractice stand alone, but is always caught up in the differential between narrative, image, dialogue and reflection. In this manner, an opening or aperture for critical thinking on the transmission of past trauma is created. In a particularly compelling segment of the text, Artie narrates his reaction to his mother's suicide. A comic book within the comic book Maus entitled Prisoner on dissertation, the Hell Planet: A Case History, this text-within-the-text recounts Artie's own incomplete or failed attempt to work through the trauamatic loss of his mother, his own melancholic and masochistic tendencies to internalize the dysfunction of his family and his mother's depression, and the degree to which his writing bears the mark of that loss and is itself a type of working-through in on bipedalism its own right. The subtitle A Case History mocks the dissertation, case history in psychoanalysis, in which the patient is cured of the incessant return of the poisonwood criticism, traumatic past through rigorous therapeutic intervention. In Prisoner from the Hell Planet, there isn't any easy closure, and the suffering individual remains captive in the prison of deadlines his own masochistic melancholia, the jail cell of his own wounded self, not really understanding the unconscious connection to the melancholia of the mother and the unconscious identification with the damaged father. Traversing the breach between past and present, Father and hotel quality thesis Son, language and image, manifest and latent, Spiegelman's Maus bears witness to the process of bearing witness, and the technical and technological requirement of writing and tape-recording in order to produce a narrative of the trauma and thereby alleviate the symptomology of depression and withdrawl that is the danger of a past left to fester as an unhealed wound. Paul Celan's essay Meridien states that every piece of authentic writing has a date and a place: it speaks a specificity, and in that specificty it gestures towards an Other. Spiegelman's Maus , in deadlines transmitting the story of the father through the son, does not avoid or gloss over any of the difficulties entailed in working-through trauma, which, as we know, always brings with it some degree of acting-out. Maus enacts the difficulty of essay lost love working through a traumatic historical past that defies attempts at mastery, and is a visceral presentation of the postmodern fragmented self struggling to come to terms with this damaged and wounded history in a conscious manner. Maus II ends with the reunification of Vladek and Anja after Auschwitz.

In the final scene, Vladek tells Artie he is tired of talking: I'm tired from talking, Richieu, and dissertation deadlines it is difference leadership, enough stories for now. This last slip of the tongue -- naming Artie his dead little brother who perished in the Holocaust -- attests to deadlines the ongoing trauma that never ceases never ceasing to break in upon the conscious, wakeful world. Essay On Bipedalism! And Maus documents this refusal in a compelling and extremely concrete manner.