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Global history cold war thematic essay

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USA vs USSR Fight! The Cold War: Crash Course World History 39


In which John Green teaches you about the Cold War, which was occasionally hot, but on average, it was just cool. In the sense of

Global history cold war thematic essay Essay Service

Global history cold war thematic essay

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my class homework Copyright 2002 by Elizabeth Yeow. Included here with permission of the author. #9;Every fall excitement fills the air as students arrive at school with new backpacks and school supplies, eager to meet their new teacher. Always a new beginning, the start of school allows every student to have a fresh beginning and global cold war thematic essay, make this year the best year ever. Yet within weeks of the start of school, teachers begin to anthropology help social, see a certain pattern emerging: the same students repeatedly neglect to turn in cold war thematic essay, homework. The teacher will then remind, reprimand, take away recess, and threaten to call home and comparative research paper on c+ + and java, talk to cold war thematic essay, their mom and dad. Techniques Dissertation? Occasionally, this will work and the student will miraculously appear with homework in hand, most of the global, time there are just excuses. More often, the teacher becomes more frustrated and disheartened, the student#146;s grades drop and he or she will feel like a failure. The repetition of this scenario caused me to really consider the value and effect of homework.

Every year, and this year is sport obermeyer case study essays no exception, I have at least one student, usually two, who never bring their completed homework back on time. I was puzzled by these students#146; attitudes towards homework. I wanted to understand more about their perceptions of cold war thematic essay homework and to find out what kind of support they were receiving at home. Perhaps, these students do not understand the homework or maybe their parents are unable to techniques dissertation, help them. Maybe the instructions were unclear or the homework is too difficult for them. I wanted to understand more about their parents#146; views about school and homework. Global Essay? I also wanted to know more about other issues that may be going on at home. What are some things that I could do to help them bring their homework back? As I began this study, I had several assumptions.

I saw homework is an important part of their schoolwork and critical thinking, is a reinforcement of cold what is learned at school. This extra practice is helpful to students and when students do not do their homework it affects how they do in school. Also, lack of finished homework may be an indication of study essays their attitude towards school or learning. I teach at Clara Barton Elementary School (pseudonym), a public elementary school in history essay, the suburbs of a metropolitan area, about 15 miles outside of techniques de la dissertation Washington, DC. At the beginning of this school year Clara Barton Elementary School switched from a traditional school calendar to a year round calendar. On the year round calendar school is in session for nine weeks and then there is a two or three week intersession break.

During the intersession remediation and history war thematic essay, enrichment classes are offered to students. The cost of sport case study attending intersession is five dollars. The community around Clara Barton Elementary School is comprised of single family homes, townhouses, and cold essay, multifamily dwellings. The majority of the students that attend Clara Barton Elementary School live in newspaper, the townhouse community directly behind the school. The townhouse community accepts Section 8 housing certificates. Many of the townhouses house more than one family. There is a high transience rate at Clara Barton Elementary School of about 40 percent. Seventy-five percent of the school is composed of ethnic- and language-minority students.

More than 22 countries and many different languages are represented at Clara Barton Elementary School. Many of the students that attend Clara Barton Elementary School are from low-income families. Clara Barton Elementary School receives funding from Title I and many of the students receive free or reduced lunches. The school is organized primarily into self-contained classrooms. The school does not have a formal homework policy, but in the staff handbook there is a recommended amount of time students should spend on homework based on grade level. Third grade students should have between 30-60 minutes of homework per evening. Global History? The school slogan is Clara Barton Reads and students are encouraged to read 20 minutes at home every night as part of their homework. This is my fourth year teaching and I have taught third grade at sport obermeyer essays, Clara Barton Elementary for all four years. I am an Asian female. Global War Thematic Essay? The students in my class are all in the third grade. Best To Get Out Of Depression? The class is composed of 18 students, 8 boys and 10 girls.

Sixteen out global history cold war thematic essay of the case study, 18 are ESOL students. Eight of the students speak Spanish at home, 5 speak Vietnamese, and 1 speaks another language. Homework in global history cold, my classroom is comparative java assigned Monday through Thursday evenings and cold essay, usually includes spelling, reading, and math. When students arrive at school in the morning they take out their homework and newspaper journals, stack it on a table at the back of the room. While they are putting their backpacks, books, and jackets away I check in their homework. Any student who does not bring in completed homework has to finish their homework during free activity time. Selecting a Focus Group. As I looked over my homework grade sheet I noticed that I had three students, all boys, who repeatedly did not bring in their homework.

Two of the boys, Jose and Juan (pseudonyms), are Hispanic and one, Aaron (pseudonym), is African-American. Originally I decided to global war thematic, look at all three students, but then Juan moved mid-year. So, I had two students to focus on, but the more I collected data and reflected I realized that I really was focusing more on Jose. Due to time constraints and the inability to critical activity, contact Aaron#146;s mother I decided to focus this study about Jose. #9;Jose is a third grade, ESOL student. His primary language is Spanish; however he is very fluent in English. Global Cold War Thematic? Jose has helped translate a few words for me before. He is the oldest child in his family and has one younger sibling who is not old enough yet for school. He lives with his mother, father, grandmother, and critical thinking activity for adults, younger sister.

His father and mother both work full-time. His father often has to work night shifts and sometimes does not get to see Jose much because of his work schedule. Jose has attended Clara Barton Elementary School since kindergarten and lives in the townhouse community behind the school. Jose loves to draw during his free moments and will frequently take out a notebook and draw action figures. Global History Cold? Jose takes Tae Kwon Doe classes in the evenings and frequently talks about how he enjoys these classes. He is well-liked at school and has many friends, both boys and research journals, girls, in his class. He is cold essay reading on grade level, but his writing and math are below grade level. Frequently Jose needs short extensions on in-class assignments. As I considered my puzzlement over journals, students#146; attitudes towards homework I realized there may be many different things contributing to this puzzling situation.

My own beliefs and values may be contributing to this puzzling situation. History? Perhaps my expectations for journals, completed homework are too high or I am giving too much homework. My expectation that students should have and do homework may be influenced by global history cold essay my experience with homework as a child. #9;In the techniques de la, last thirty years the cold war thematic essay, controversy over the value of homework has come up again and again. Depending on the decade there are either demands for more homework or cries for less homework. Proponents for homework believe that it can help students retain more, improve study skills, and teach students that learning can take place anywhere. In addition, homework can promote independence and depression, responsibility and it can help parents connect with what their children are learning in school. Opponents of homework believe that homework can hinder children from participating in other beneficial activities, such as sports or scouts. In addition, parental involvement with homework can confuse students if their parents use techniques that are different than their teachers.

Homework can also accentuate the disparity between students from low-income homes and students from global history cold war thematic middle-class homes. Students from low-income homes may have more difficulty completing an assignment (Cooper, 2001). It is also possible that there is a cultural mismatch between what is research emphasized at home and history cold war thematic essay, what is paper + and emphasized at school. My belief that homework is important and should be given Monday through Thursday nights is global war thematic also emphasized by the administration at my school. Perhaps Jose#146;s parents do not value schoolwork and homework as much as it is emphasized in school. Sport Obermeyer Case? They may feel that homework is repetitious and global history essay, unnecessary for their child. Maybe they feel they can provide more authentic learning after school for their children by providing them with cultural, athletic, or other experiences. Parents may feel that these other activities will benefit their child more and may therefore not stress homework. It is also possible that parents may not value school and this feeling is conveyed to students.

Outside influences may also affect Jose. Perhaps he has seen older friends or relatives who do not do their homework. He may view these older ones as cool or maybe he has seen kids on television or in movies that do not do their homework. Another outside influence might be the economic situation of the help solve social problems, family. The family may be struggling to make ends meet and there may be difficulties at home that are a higher priority to students than homework. #9;These cultural influences are important for me to look at because they could change the way I administer homework or the amount of homework that I give. After considering all of the possible cultural influences, I decided to narrow them down to the two that I believe to be the most significant. The two cultural influences that I thought might be the global history war thematic, most applicable to my puzzlement are teacher beliefs (CIP 3.1) and java, a cultural mismatch between home and school (CIP 3.3.2). My beliefs as the teacher affect my giving of global cold essay homework, my expectation that it be done, and how much I actually assign to students. I believe that one of the strongest influences on young children is their family and their home. Since young children are still very much under the de la dissertation, direct charge of their parents, if they bring in their homework or not is especially dependent on their parents.

Their parents have control over war thematic essay, whether or not they are given time after school to paper java, complete homework. Global History War Thematic? The school culture emphasizes an importance on homework and this may not coincide with parental beliefs or practices. This discord will ultimately affect how a child is perceived by his/her teacher and how successful he/she is academically. In order to research on c+ + and java, determine what cultural influences were contributing to my puzzlement I needed to gather information about my beliefs. I chose to look at these by journaling, a technique recommended in history cold war thematic, the Cultural Inquiry Process (Jacob, 1999). In my journaling I needed to consider why this situation was puzzling to me and why I think this situation is happening. My beliefs, background, and previous experience influence how I look at this puzzling situation and how I approach this situation. If I can identify my beliefs and ways to get, values then I can see how they might be contributing to war thematic essay, the puzzling situation.

After reflecting and journaling about my homework beliefs I had the newspaper research, opportunity to discuss the topic of my research with my colleagues at school. Through this discussion I realized that I should ask them what their beliefs were about homework and find out how much homework the other third grade teachers were giving (CIP 4.1). #9;Information also needed to be gathered about a mismatch between the student#146;s home culture and history, the school curriculum (CIP 4.3.2). The school or the school district might have a homework policy that I am unaware of. If there is a homework policy then there is not a strong emphasis on it and de la dissertation, it does not seem to influence teachers and how often or how much homework they give. Global History War Thematic? Weisenthal, Cooper, Greenblatt Marcus, (1997) found that schools with a strong emphasis on comparative research on c+ + and, homework influenced how often teachers gave homework. I realized it was important to look at the school culture and then to look at history cold essay, the home culture and see if there was a mismatch. In order to find out journals more information about Jose#146;s home culture I considered visiting his home but I had difficulty contacting his parents. I sent many notes home, called home and tried to leave messages.

Eventually I was able to speak to Jose#146;s father. Global Cold? I also interviewed students using a modified version of The Student Survey of Homework Practices (Grajria, M. Salend, S. J., 1995) to try to critical activity for adults, determine what the war thematic essay, home environment and culture was like as well as to find out what their attitude was toward homework. I looked at Jose#146;s school history and research, contacted Jose#146;s second grade teacher to see what Jose had been like as a second grader. #9;I grew up in an environment where receiving and doing homework was part of a daily routine. Teachers gave me homework, my parents expected that I would have it done, and if I did not do it I felt horrible. My parents always made sure that my homework was done when I was in elementary school. By the time I reached middle school and high school I had acquired the habit of doing homework independently. I have always believed that homework helps students learn and reinforces concepts. The question I have to ask myself in history cold, this puzzlement is Do I know for sure that homework benefits students? In order to answer this question I decided to research, look at some research that has been done on the benefits or detriments of homework. The correlation between completing homework and academic achievement has been the global cold essay, subject of ways much research.

Depending on which side of the homework argument one is on, research can have both positive and negative effects on students. According to Cooper (2001) some positive academic effects of homework include retention and global history cold, understanding of material, improved study skills, improved attitudes toward school. Obermeyer? Some nonacademic effects of homework include promoting independent and responsibility in students and global cold essay, involving parents in what is newspaper research journals going on in the classroom. Homework also has some negative effects, such as boredom, denying students leisure time and essay, the benefits of wholesome learning from scouts or sports. Homework can lead to cheating and obermeyer, can emphasize the disparity between the history cold war thematic essay, homes of low-income and middle class students. To Get? Students from low-income homes may have to history, work after school or may not have a quiet place to study at thinking, home. When looking at 50 studies done on homework and student achievement, Cooper (2001) found that homework had little or no effect on student achievement at the elementary level. #9;After reading some research on the effects of homework on global history essay, academic achievement I had to seriously consider how my beliefs fit into this. I realized that giving homework benefited me as the newspaper, teacher. These benefits matched the benefits teachers expressed having in the Homework Attitude and Behaviour Inventory for Teachers (Weisenthal et al., 1997).

Homework improved my ability to cold essay, cover the ways out of, curriculum and acted as a kind of global essay bridge between the techniques de la dissertation, last lesson and the next one. Although homework benefited me, as the teacher, I found myself reconsidering why I was handing out homework to students. According to Kralovec and Buell (2001), elementary school students show no significant academic gain from doing homework. History Essay? So, if homework was not helping students academically then how worthwhile was giving homework? #9; I found out that the ways out of, other two third grade teachers, both males, at my school were not giving as much homework as I was. Global Cold War Thematic Essay? One teacher usually gave only spelling and reading as homework. Every once in a while he would give math homework.

The other third grade teacher usually gave math and reading as homework and rarely gave spelling homework. I, on the other hand, gave math, spelling, and reading as homework. Why weren#146;t the dissertation, other teachers giving as much homework as I was? According to Weisenthal et al. History Essay? (1997) some teachers may go easy on newspaper journals, themselves so they have less homework to collect and to grade. I decided to go back and interview the other third grade teachers to find out what their beliefs about homework were. One of the teachers did not believe that giving homework was a big deal unless a child did not understand the homework. He believed that homework should be given for students to build responsibility and for global cold essay, character building.

In his experience the ones that don#146;t bring their homework back are usually the ones that don#146;t understand the concepts. He also felt that at the elementary level if students pay attention in class then they will achieve and homework will not necessarily help them achieve. The other third grade teacher believed that homework should be a reinforcement of what is taught in school and he felt that it made a difference in their achievement at school. He said that he could tell the next day by student performance if a student did or did not do their homework. He also believed that homework helped students learn to be responsible and build a good work ethic. After discussing homework policies and their beliefs about homework with my colleagues I went to the principal and asked her if we had a school wide homework policy.

She referred me to the staff handbook. Although there is not a school wide homework policy, there were some generally accepted principles that should govern teachers when assigning homework. Critical Thinking For Adults? Some of the principles include, flexibility and differences in the assignments to history essay, individual students, homework should be reasonable in obermeyer case study essays, view of the pupil#146;s situation including health, housing conditions, outside work or responsibility, leisure-time activity and conflicting demands of home and school. On the daily announcements students are encouraged to global history cold war thematic essay, read for 20 minutes every night as homework. Any homework given out in addition to this is best depression up to cold essay, the individual teacher.

I also looked through Homework Helper: A Guide for Teachers which was published by the school district. This guide was handed out at a staff meeting at the beginning of the school year and teachers were encouraged to use it as a guide. Since that time homework has not been discussed with the staff. Techniques? According to global cold war thematic essay, the guide the purpose of homework is to sport case study essays, practice skills, reinforce academic concepts, extend learning, promote good study skills, apply new skills and concepts, involve parents, and develop positive attitudes toward school and learning. The guide does not discuss the amount of homework to be given. Any homework, aside from the daily reading, is global history cold essay up to research paper + and java, the individual teacher. #9;In order to gather more information about history cold war thematic essay Jose#146;s home culture I tried to contact Jose#146;s parents through notes and newspaper journals, phone calls home. Essay? After repeated attempts to sport essays, contact Jose#146;s parents, his father appeared one afternoon at my classroom door. It appeared that he had finally received one of the many messages I left for him.

I was very excited to meet with him, but wondered how the meeting would go as we did not have a translator. After a few minutes I thought it would be appropriate because it seemed that he had enough of a grasp of the English language for us to be able to communicate without a translator. Our meeting was short (we really did need a translator). I asked him a few questions about his job and Jose#146;s behavior and work habits at home. He seemed very responsive and history cold essay, concerned.

Apparently Jose had been telling him since the beginning of the year that he did not have any homework. He had believed Jose and did not try to contact me to confirm it. How Can Anthropology Help? He and his wife both worked long hours and many times he had to work the night shift. Often when Jose comes home his mother is at work and his father is history cold either at work or sleeping. His grandmother, who speaks only social problems Spanish, is there to watch him. Jose#146;s father said that he or his wife always asked Jose if he had finished his homework. Cold War Thematic? He did mention that one afternoon when he told Jose his friend had to go home he saw Jose give his friend a piece of paper that looked like homework. His father didn#146;t ask about it and forgot about it until his meeting with me. Obermeyer Case Study Essays? The weekly notes that I had been sending home did not reach Jose#146;s parents either.

Jose#146;s father suggested that he could sign Jose#146;s homework every evening and maybe this would help Jose do his homework and bring it to school. The day after meeting with Jose#146;s father, Jose did not have his homework. Global History Essay? He did bring his homework the best out of depression, next day signed by his father, but since then he hasn#146;t had anything signed by global cold war thematic either parent. #9;I realized through this brief interaction with Jose#146;s father that he and his wife both cared about their son and sport, his success in school. However, I realized that they also had other things, such as tae kwon do lessons, that they wanted their son to learn.

Gonz á lez (1995) points out how important it is for cold war thematic essay, teachers to know their students#146; culture and to critical thinking activity for adults, not have a prepackaged awareness of cultural diversity. They were providing nonacademic experiences for their son that they felt were important for his development as a person. In addition, I realized that Jose#146;s father wanted his son to do his homework, but was very limited due to his work schedule to global history, encourage and help Jose. I#146;m not sure why Jose#146;s mother did not return phone calls or come to school with Jose. I have only seen Jose#146;s father with him when attending school events. Although Jose#146;s father indicated that they asked Jose about his homework they did not seem to do anything to encourage or require that Jose do his homework.

Since they may not have been encouraging him to do his homework Jose may have been getting the message that homework was not valuable to his parents. #9;I contacted Jose#146;s second grade teacher to discuss his homework habits in thinking for adults, second grade. I found out that he rarely brought in finished homework and Jose#146;s second grade teacher frequently tried to contact his parents to discuss work habits. She noticed that when his father had to work the night shift Jose came to school quite disheveled and without any homework. When Jose#146;s father switched to working during the day Jose seemed more attentive in school and global history cold, sometimes was able to bring in finished homework. Jose#146;s achievement in school, including homework completion, seemed to be directly affected by his father#146;s work schedule. Tapia (1998) indicated that the most important factor influencing poor students#146; academic performance is family stability. Jose#146;s feeling of family stability seemed to research paper java, be affected by seeing his father regularly during the afternoon and evening. #9;To find out my class#146; attitude and global essay, homework habits I passed out the Homework Survey to my whole class and read it to them as they circled responses. Best To Get Out Of Depression? I emphasized that this was not for a grade and history essay, they should answer exactly how they felt and not be worried about being wrong. Help Solve? Some sample questions from the survey are as follows: - I get easily distracted when I am doing my homework.

- I feel unsure about which homework assignment to do first. - I feel teachers are unfair and give too much homework. - Activities such as sports and global war thematic essay, music are more important to me than doing my homework. - Someone checks my homework for me when I am done. - Someone at how can solve problems, home asks me if I have finished my homework. I handed out the surveys and then read through each item and explained any of the questions that students did not understand. As I looked over the surveys I realized that my students were limited in their ability to self-report because of their young age and their self-reports may not be identical to their actual practices at home. Global History Cold War Thematic Essay? For example, Aaron reported that he always turned in his homework when he actually rarely turned in his homework. Nine students, half of the class indicated that they need someone to critical activity for adults, remind them to do their homework. Half the class indicated that they sometimes need help with their homework. It was interesting to history cold war thematic essay, note that Jose indicated that he does not like to do homework, many times feels he needs help with his homework, and activity, he thinks homework is important only some of the time.

Jose also indicated that he received daily reminders at home to history cold essay, do his homework, but despite these reminders he did not always do his homework. Interventions and Monitoring. #9;One intervention I tried was to how can problems, change homework assignments so there wasn#146;t as much of a mismatch between Jose#146;s culture and the school curriculum (CIP 5.3.2). Global History War Thematic Essay? Maybe Jose did not see the newspaper journals, relevance of the homework that was given and needed homework that was more meaningful. Global History Cold War Thematic Essay? Kravolec and Buell (2001) found homework could be very disruptive of family life. It can interfere with what parents want to teach their children and research on c+ java, punish children in poverty from global being poor. Activity? Parents may have cultural and religious beliefs or life skills that they feel are important for their children to global history war thematic essay, learn, but homework may interfere with the limited time they have with their children to share those beliefs or skills. Since Jose frequently talked about best to get depression Tae Kwon Do lessons and other things that he did during the week with his parents, I realized that it was important to them for their son to global, be trained in some kind of sport. They might also feel that as a growing boy Jose needed some physical activity after school.

Although Jose indicated that his parents asked him about his homework they did not ask to de la, see his homework. They believed him when he said he did not have homework or that he had finished his homework. It is possible that they did not have the global, time or energy to look at obermeyer case essays, his homework. They both worked long hours and global history cold war thematic essay, it is possible that they had many daily survival demands that are more important than Jose#146;s elementary school homework. Since outside influences can not always be controlled or changed, I realized that interventions had to how can anthropology solve social problems, be made at the school or classroom level to help students (CIP 5.4.1). It seemed that Jose was not getting the support that he needed from home because his parents#146; time is occupied with work and other basic survival issues, so one intervention was to give less challenging homework. Although all the homework I give students should be able to do independently, he had indicated on his Homework Survey that he needed help a lot. So, I modified his homework and noticed that he started turning in part of his homework. His parents#146; limited English may affect Jose, so I tried to history cold essay, give more homework that was self-explanatory and made sure that he understood all the directions before he left school. Another intervention I tried was to allow Jose to begin his homework at school.

I let him start his homework at best to get, school. I noticed that the next day sometimes the only part he would have to history, turn in was the part he had started in thinking activity for adults, school. Jose seemed to global cold, have difficulty getting his homework from school to home and then back to school. So, I gave Jose a checklist with a Velcro check that he could move when he had completed a task. How Can Anthropology Problems? The checklist was to help him write his homework down, collect the materials he needed for global essay, home, put them in his backpack. Comparative Research Paper On C+ + And? His father was given a matching one to keep at home. Essay? Before leaving to go home everyday he had to make sure to check in techniques de la, with me so I could check his backpack. After receiving the checklist I watched Jose everyday and noticed that he wasn#146;t following it.

I reminded him and encouraged him to use it, but he still didn#146;t use it. On a daily basis I continue to check Jose#146;s backpack and give verbal reminders to use his homework checklist. He lost the global cold war thematic essay, Velcro check for his end-of-the-day checklist on his desk, so I gave him a new one, but he still hasn#146;t used it. Paper? He has gotten used to checking with me before leaving. For about two weeks I reminded him that he needed to see me before he walked out the door.

Now he remembers on his own that he has to show me his homework inside his backpack. He comes up to me with his backpack open and his homework at the top so I can see it. I send informal weekly progress reports home to global history war thematic, his parents so that they know how he is doing in school and whether or not he has been turning in his homework. Summary and Implications. After all the interventions and study, monitoring I can say that Jose turns in his homework about global history half the time.

For the first half of the comparative research paper on c+ + and, year he rarely turned in any homework assignments and the ones he turned in were usually unfinished. He seems to have more of an understanding that for me doing homework is history war thematic essay just as important as doing work in ways, school. I also have a better understanding of his home situation and that although his parents want him to do well in school they also have other things that they feel are important for Jose to cold war thematic, learn. The communication between home and case essays, school is definitely better. Cold War Thematic? In addition I feel that I am more aware that the situation at comparative research on c+, home greatly affects students#146; ability to work on homework and global history cold essay, bring it back to school. This inquiry and research on the benefits and negative effects of homework on students like Jose has really caused me to research paper java, rethink why I give homework and the amount of homework I give. I realized that my beliefs and history cold essay, values about homework really contributed to my puzzlement. I have really been considering and debating within myself the issue of homework.

I feel like I have been forcing my culture and background on students and making them relive how I went through school. Do I give homework for research, character building or do I really believe that it will help students#146; academic achievement? Checking homework usually takes fifteen minutes in the morning. Maybe this time would be better spent giving minilessons at the beginning of the day or building community in the classroom. Although the school and school district set policies for global cold war thematic, homework, they do not stress that homework must be given every night. As a result of this research, I want to make sure that I give meaningful homework. I have also decided to give more differentiated homework. Solve Social? Students like Jose seemed to global history, be overwhelmed with the amount of homework that I give so I will try adjusting assignments to fit the individual student as necessary. Cooper, H. (2001).

Homework for techniques de la, all #151; in global history, moderation. Educational Leadership , 34-38. Gajria, M. Salend, S. J. (1995). Homework practices of newspaper students with and without learning disabilities: A comparison. Journal of Learning Disabilities, 28 (5), 291-296. Gonz á lez, N. E. History Cold War Thematic Essay? (1995). Newspaper? The funds of knowledge for history war thematic, teaching project. Practicing Anthropology, 17 (3), 3-6. Kralovec, E. Buell, J. (2001). Critical? End homework now.

Educational Leadership , 39-42. Tapia, J. (1998). The schooling of Puerto Ricans: Philadelphia#146;s most impoverished community. Anthropology and Education Quarterly, 29 (3), 297-323.

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43 Resume Tips That Will Help You Get Hired. When you haven’t updated your resume in cold war thematic essay, a while, it can be hard to know where to start. What experiences and accomplishments should you include for the jobs you’ve got your eye on? What new resume rules and trends should you be following? And seriously, one page or two? Well, search no more: We’ve compiled all the resume advice you need into one place. Critical. Read on for tips and tricks that’ll make sure you craft a winning resume—and help you land a job. Your resume should not have every work experience you’ve ever had listed on war thematic essay it.

Think of your resume not as a comprehensive list of techniques de la your career history, but as a marketing document selling you as the perfect person for the job. For each resume you send out, you’ll want to highlight only the accomplishments and skills that are most relevant to history essay, the job at sport case hand (even if that means you don’t include all of your experience). War Thematic Essay. Job search expert Lily Zhang explains more about what it means to tailor your resume here . 2. Sport Obermeyer Case Study Essays. But Keep a Master List of All Jobs. Since you’ll want to be swapping different information in global history cold essay, and out depending on the job you’re applying to, keep a resume master list on your computer where you keep any information you’ve ever included on a resume: old positions, bullet points tailored for different applications, special projects that only sometimes make sense to include. Then, when you’re crafting each resume, it’s just a matter of cutting and pasting relevant information together. Think of this as your brag file . Sport Obermeyer Case Study. 3. Global History Cold Essay. Put the Best Stuff “Above the study, Fold” In marketing speak, “above the fold” refers to history cold essay, what you see on the front half of a folded newspaper (or, in the digital age, before you scroll down on research a website), but basically it’s your first impression of global cold a document. In resume speak, it means you should make sure your best experiences and accomplishments are visible on the top third of your resume. This top section is what the hiring manager is going to see first—and what will serve as a hook for someone to on c+ + and, keep on reading. So focus on war thematic essay putting your best, most relevant experiences first—and then check out these five other marketing tricks to get your resume noticed . According to Zhang , the how can anthropology, only occasion when an objective section makes sense is when you’re making a huge career change and need to explain from the get-go why your experience doesn’t match up with the global cold war thematic essay, position you’re applying to. In every other case?

Consider whether a summary statement would be right for you —or just nix it altogether to save space and focus on making the rest of your resume stellar. Research Paper + And. There are lots of different ways to organize the information on global history cold war thematic your resume, but the good old reverse chronological (where your most recent experience is listed first) is still your best bet. Unless it’s absolutely necessary in your situation, skip the skills-based resume—hiring managers might wonder what you’re hiding. Critical Thinking Activity. The two- (or more!) page resume is a hotly debated topic , but the bottom line is this—you want the information here to cold, be concise, and making yourself keep it to solve problems, one page is a good way to force yourself to do this. If you truly have enough relevant and important experience, training, and credentials to showcase on more than one page of your resume, then go for it. War Thematic Essay. But if you can tell the same story in less space? Do. If you’re struggling, check out these tips for cutting your content down , or work with a designer to essays, see how you can organize your resume to fit more in less space. Can’t figure out how to tell your whole story on one page, or want to global history cold essay, be able to include some visual examples of best ways depression your work? Instead of trying to have your resume cover everything, cover the most important details on that document, and then include a link to your personal website , where you can dive more into global cold what makes you the ideal candidate. We’ll talk about getting creative in order to stand out in a minute.

But the most basic principle of good resume formatting and design? Keep it simple. Use a basic but modern font, like Helvetica, Arial, or Century Gothic. Make your resume easy on hiring managers’ eyes by using a font size between 10 and 12 and dissertation, leaving a healthy amount of white space on the page. You can use a different font or typeface for your name, your resume headers, and the companies for which you’ve worked, but keep it simple and keep it consistent. Your main focus here should be on readability for the hiring manager. That being said, you should feel free to… Really want your resume stand out from the sea of Times New Roman?

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This is arguably the most important document of your job search, so it’s worth getting it exactly right! 13. Keep it Recent, Keep it Relevant. Global War Thematic. As a rule, you should only show the most recent 10-15 years of your career history and only include the experience relevant to critical thinking activity for adults, the positions to which you are applying. And remember to allocate real estate on your resume according to importance. History War Thematic. If there’s a choice between including one more college internship or going into research paper + and java more detail about your current role, always choose the latter (unless a previous job was more relevant to the one you’re applying to).

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Don’t Neglect Non-Traditional Work. There’s no law that says you can only put full-time or paid work on your resume. So, if you’ve participated in a major volunteer role, worked part-time, were hired as a temporary or contract worker , freelanced, or blogged? Absolutely list these things as their own “jobs” within your career chronology. If every bullet in history war thematic essay, your resume starts with “Responsible for,” readers will get bored very quickly. Use our handy list of better verbs to mix it up ! Use keywords in your resume: Scan the job description, see what words are used most often, and make sure you’ve included them in your bullet points. Not only is this a self-check that you’re targeting your resume to best ways out of depression, the job, it’ll make sure you get noticed in applicant tracking systems. History. Stuck on which words to out of, include?

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But including your scrapbooking hobby for history cold war thematic, a tech job at a healthcare company? Don’t even think about it. 32. Beware of Interests That Could Be Controversial. Maybe you help raise money for your church on the reg. Or perhaps you have a penchant for sport, canvassing during political campaigns. Yes, these experiences show a good amount of work ethic—but they could also be discriminated against by someone who disagrees with the cause. Zhang explains here how to war thematic essay, weigh the decision of whether to include them or not.

Do include awards and sport obermeyer study, accolades you’ve received, even if they’re company-specific awards. Just state what you earned them for, e.g., “Earned Gold Award for history cold war thematic, having the company’s top sales record four quarters in a row.” What about personal achievements—like running a marathon—that aren’t totally relevant but show you’re a driven, hard worker? Zhang shares the proper ways to critical thinking activity for adults, include them. Gaps and Other Sticky Resume Situations. If you stayed at a (non-temporary) job for only a matter of months, consider eliminating it from global history war thematic essay your resume. According to The New York Times ’ career coach , leaving a particularly short-lived job or two off your work history shouldn’t hurt, as long as you’re honest about your experience if asked in an interview. If you have gaps of a few months in your work history, don’t list the comparative research on c+ + and, usual start and end dates for each position.

Use years only (2010-2012), or just the number of years or months you worked at your earlier positions. If you’ve job-hopped frequently, include a reason for leaving next to each position, with a succinct explanation like “company closed,” “layoff due to cold war thematic, downsizing,” or “relocated to research, new city.” By addressing the gaps, you’ll proactively illustrate the reason for history cold essay, your sporadic job movement and make it less of an sport obermeyer case study, issue. Re-entering the workforce after a long hiatus? This is the perfect opportunity for a summary statement at the top, outlining your best skills and global war thematic essay, accomplishments. Then, get into best to get out of depression your career chronology, without hesitating to include part-time or volunteer work.

See more tips from Jenny Foss for killing it on your comeback resume. Don’t try to creatively fill in gaps on your resume. History. For example, if you took time out of the workforce to raise kids, don’t list your parenting experience on your resume, a la “adeptly managed the growing pile of laundry” (we’ve seen it). While parenting is ways as demanding and intense a job as any out there, most corporate decision makers aren’t going to take this section of your resume seriously. 39.

Ditch “References Available Upon Request” If a hiring manager is global cold war thematic essay interested in critical, you, he or she will ask you for references—and will assume that you have them. There’s no need to address the obvious (and doing so might even make you look a little presumptuous!). Global History Cold. It should go without saying, but make sure your resume is free and clear of typos. Critical Thinking For Adults. And don’t rely on global spell check and grammar check alone—ask family or friends to how can anthropology solve social, take a look at it for you (or get some tips from an editor on how to perfect your own work ). Global History Cold Essay. If emailing your resume, make sure to always send a PDF rather than a .doc. That way all of your careful formatting won’t accidentally get messed up when the hiring manager opens it on his or her computer.

To make sure it won’t look wonky when you send it off, Google’s head of HR Laszlo Bock suggests, “Look at it in both Google Docs and Word, and then attach it to an email and open it as a preview.” Ready to save your resume and send it off? Save it as “Jane Smith Resume” instead of “Resume.” It’s one less step the hiring manager has to take. Carve out some time every quarter or so to thinking activity for adults, pull up your resume and make some updates. Have you taken on new responsibilities? Learned new skills? Add them in. When your resume is updated on a regular basis, you’re ready to pounce when opportunity presents itself. And, even if you’re not job searching, there are plenty of good reasons to keep this document in tip-top shape. Photo courtesy of Hero Images / Getty Images . Global History War Thematic. Erin Greenawald is how can anthropology help solve a freelance writer, editor, and content strategist who is global essay passionate about critical for adults, elevating the standard of writing on the web.

Erin previously helped build The Muse’s beloved daily publication and global, led the company’s branded content team. If you’re an individual or company looking for help making your content better—or you just want to go out to thinking for adults, tea—get in touch at eringreenawald.com. Hmmm, seems you#39;ve already signed up for global cold war thematic essay, this class. While you#39;re here, you may as well check out all the de la dissertation, amazing companies that are hiring like crazy right now.

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dessay height Drunk Driving is a serious offense. Dui Assistant can help you find a true Driving While Intoxicated lawyer or DUI law Firm to protect your legal rights and defend you from a Drunk Driving related Charge. A Drunk Driving Conviction can lead to history essay, loss of sport obermeyer case essays employment, substantial civil penalties, fines, jail time, probation, forced rehabilitation, loss of your vehicle, loss if income, loss of insurance and other serious consequences. Massachusetts DUI and Massachusetts OUI Violations – Here is the Law. Massachusetts DUI Laws. It is illegal to drive or operate a motor vehicle in Massachusetts, if you are under the 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 global essay age of 21, he or she is prohibited from driving if his or her BAC is thinking activity, higher than .02%. Global History War Thematic Essay? Any driver in Boston or throughout the state of Massachusetts found driving with a BAC at techniques, 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 global war thematic, defend you in court. Judges, prosecutors, and law enforcement authorities have no tolerance for people who drive under the influence, and comparative paper on c+ + and, always prosecute those people in court. There are defenses to global war thematic, a Massachusetts DUI and Massachusetts OUI Offense: For example, improper administration of roadside tests, mistakes in the arresting officer’s subjective conclusions regarding your coordination and stability, and how can, the inaccuracy of breathalyzer machines. War Thematic Essay? Field sobriety tests, for example, are not reliable indicators of comparative research paper on c+ java intoxication. Especially when asked to perform them at night, on the shoulder of the road, in the cold, in the glaring squad car headlights. Global History War Thematic Essay? We have had success in getting charges dismissed or reduced, or obtaining not guilty verdicts at trial, representing professionals, college students, underage drivers and every type of help solve client. Massachusetts encourages first time offenders with no criminal record to plead out in a diversion program.

The case is dismissed after mandatory alcohol education classes and one year of probation and, and you can get a hardship driver’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. •Jail: Not more than 2 1/2 years House of Correction. •License suspended for 1 year; work/education hardship considered in 3 months; general hardship in 6 months. Alternative Disposition (1st Offense OUI) •Plead to Continuance without a Finding aka CWOF. History? It is similar to, but not technically a guilty plea. (More info on best out of depression, a CWOF.) •Pay a number of fines and cold war thematic essay, court fees (over $2500 in total), as well as take a hit to your insurance.

•Unsupervised probation for one year. •Mandatory participation in 16 week (1 hour) alcohol-drug education (DAE) program paid for by defendant. •License suspended for how can anthropology solve social 45 to 90 days (not including any penalty for breath test refusal) •License suspension is 210 days for drivers under age 21. •You are eligible for global history cold essay a hardship license right away, in most cases. The Real Deal on First Offense OUI Penalties: The minimum penalty (above) is sport obermeyer case, 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. In addition, a smart attorney will include all other charges in history cold essay the plea deal, including civil speeding ticket/moving violations as part of the on c+ java same penalty, saving you fines and insurance increases. Massachusetts OUI Law – Second Offense Penalty. •Jail: Not less than 60 days (30 day mandatory), not more then 2 1/2 years.

•License suspended for 2 years, work/education hardship considered in 1 year; general hardship in 18 months. (Note: In almost every case, with a breath test refusal or failure you won’t be eligible for a hardship or full license restoration for at least 3 years total.) •As of January 1, 2006 – Interlock device installed in your car at your own expense for 2 years, when you become eligible for hardship or license reinstatement. Alternative Disposition (2nd Offense OUI) •2 years probation. •14 day confined (inpatient) alcohol treatment program paid for by the defendant. •License suspended for two years, work/education hardship considered in 1 year; general hardship in history essay 18 months. •As of January 1, 2006 – Interlock device installed in how can anthropology social problems your car at your own expense for 2 years as a condition of any license reinstatement (including hardship license).

•If your prior offense is over 10 years ago, you may be eligible for a 24D disposition, which would only be the penalties of a first offense. History Cold War Thematic Essay? 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 techniques, the implications of a 2nd offense drunk driving defense. I can almost always negotiate for global history cold essay the Alternative Disposition above for any second offense OUI conviction, but it is sport obermeyer, still a tough punishment to accept for global cold war thematic essay many people. Given that there isn’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 help social prior is in another state, or decades old, you will be forced to get an interlock device installed in your car as a condition of license reinstatement. The Registry is harsh on this point, and there is global essay, nothing any lawyer can do about it. Activity For Adults? If you are facing a 2nd offense DUI, this in itself is a good reason to strongly consider fighting the global history cold case. Massachusetts OUI/DWI Law – Third Offense Penalty(3rd) Penalty. •Jail: Not less than 180 days (150 day mandatory), not more than 5 years State Prison (felony status) •May be served in a prison treatment program.

•License suspended for 8 years, work/education hardship considered in 2 years; general hardship in 4 years. •Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 3rd Offense OUI Penalties: For any third offense OUI conviction, you are facing a mandatory 5-6 months in jail if found guilty. For a 3rd offense charge, this is a good reason to fight the case and look for a chance to win and avoid jail time. It usually only makes sense to work out critical for adults, a deal if jail time is off the table, which only happens if the court can’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. •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 global essay 5 years; general hardship in comparative paper on c+ 8 years.

•Commonwealth may seize, keep, and/or sell your vehicle. The Real Deal on 4th Offense OUI Penalties: Everything about a 3rd offense applies to a 4th, 5th or subsequent drunk driving charge. Even a small chance of winning the case is worth the history cold essay risk, since it is probably your only chance to avoid jail time. You need to consider fighting your case at trial in research paper on c+ almost all cases.

MASSACHUSETTS OUI/DUI LAWS – FIFTH OFFENSE (5th) Penalty. •Jail: Not less than 2 1/2 years (24 mos. minimum mandatory), not more than 5 years (felony status) •License Revoked/Suspended for life, no possibility of a hardship license. If convicted on a sixth or subsequent OUI offense, the punishment and mandatory jail time you are risking if found guilty will even longer. Call me for details. OUI With Serious Bodily Injury – Penalties. If you are charged with an OUI where someone is injured, you are almost certain to do jail time. The cases become extremely complicated and you need the advice of a DUI OUI lawyer.

You can face penalties of 6 months to history cold war thematic essay, 2.5 years in jail or 6 months to 10 years in ways out of State Prison depending on how your DUI or OUI violation is charged and cold war thematic essay, prosecuted. Here is a copy of the critical activity for adults Massachusetts DUI and history cold war thematic, OUI Laws. Section 24. (1) (a) (1) Whoever, upon critical thinking any way or in any place to global history cold war thematic, which the public has a right of access, or upon research paper + and java any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in cold war thematic their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of critical thinking activity for adults marijuana, narcotic drugs, depressants or stimulant substances, all as defined in history cold essay section one of dissertation chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and 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 probation for, or is granted a continuance without a finding for or otherwise pleads guilty to global history cold war thematic essay, or admits to a finding of research 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 cold who shall deposit it into the Head Injury Treatment Services Trust Fund, and the remaining amount of the assessment shall be credited to the General Fund. The assessment shall not be subject to reduction or waiver by the court for any reason. There shall be an how can solve problems 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 global cold war thematic essay, a finding of sufficient facts for operating a motor vehicle while under the influence of de la intoxicating liquor or under the influence of global cold war thematic essay marihuana, narcotic drugs, depressants or stimulant substances, all as defined by section 1 of chapter 94C, pursuant to this section or section 24D or 24E or subsection (a) or (b) of ways to get section 24G or section 24L. Global History? The assessment shall not be subject to waiver by the court for any reason. If a person against whom a fine is newspaper, assessed is sentenced to a correctional facility and global cold essay, the assessment has not been paid, the court shall note the assessment on the mittimus.

The monies collected pursuant to the fees established by this paragraph shall be transmitted monthly by the courts to the state treasurer who shall then deposit, invest and transfer the de la monies, from time to time, into cold war thematic essay, the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. The monies shall then be administered, pursuant to newspaper research, said section 66 of history war thematic essay said chapter 10, by the victim and research paper on c+, witness assistance board for the purposes set forth in global war thematic said section 66. Fees paid by an individual into the Victims of Drunk Driving Trust Fund pursuant to best depression, 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 trial court shall file a report detailing the amount of funds imposed and collected pursuant to global cold war thematic essay, this section to the house and senate committees on ways and means and to the victim and techniques, witness assistance board not later than August 15 of each calendar year. If the global essay 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 how can solve date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than six hundred nor more than ten thousand dollars and by imprisonment for not less than sixty days nor more than two and one-half years; provided, however, that the sentence imposed upon 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 global essay such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an officer of such institution for the following purposes only: to attend the comparative research + and java funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; to engage in global history employment pursuant to a work release program; or for critical thinking activity for adults the purposes of an global war thematic essay 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 how can anthropology solve problems correction; and provided, further, that the defendant may serve all or part of such thirty day sentence to the extent such resources are available in a correctional facility specifically designated by the department of correction for the incarceration and rehabilitation of drinking drivers. If the history war thematic essay defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth, or any other jurisdiction because of a like offense two times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than one thousand nor more than fifteen thousand dollars and by imprisonment for not less than one hundred and 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 solve social problems the state prison for not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than one hundred and fifty days, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served one hundred and fifty days of 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 cold administrator of critical 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 global cold war thematic essay, engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an newspaper research journals 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 correction for the incarceration and rehabilitation of cold war thematic drinking drivers. If the techniques de la dissertation defendant has been previously convicted or assigned to global cold war thematic essay, an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like offense three times preceding the date of the commission of the offense for which he has been convicted the defendant shall be punished by a fine of not less than one thousand five hundred nor more than twenty-five thousand dollars and by imprisonment for not less than two years nor more than two and 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 comparative research paper on c+ + and java not less than two and one-half years nor more than five years; provided, however, that the sentence imposed upon such person shall not be reduced to less than twelve months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for global history war thematic 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 newspaper research 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 global essay, 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 help solve social problems the department of global history cold correction for obermeyer essays 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 history cold commonwealth or any other jurisdiction because of a like offense four or more times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of newspaper research journals not less than two thousand nor more than fifty thousand dollars and by war thematic imprisonment for not less than two and best out of, one-half years or by a fine of not less than two thousand nor more than fifty thousand dollars and by history cold imprisonment in the state prison for not less than two and one-half years nor more than five years; provided, however, that the newspaper journals sentence imposed upon such person shall not be reduced to less than twenty-four months, nor suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for history cold essay good conduct until he shall have served twenty-four months of research journals such sentence; provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in charge of global cold war thematic a correctional institution, or the newspaper 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 global history cold, obtain emergency medical or psychiatric services unavailable at techniques dissertation, said institution; to global history essay, engage in employment pursuant to a work release program; or for the purposes of an aftercare program designed to support the recovery of an offender who has completed an alcohol or controlled substance education, treatment or rehabilitation program operated by the department of correction; and provided, further, that the defendant may serve all or part of such twenty-four months sentence to newspaper journals, 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. No trial shall be commenced on a complaint alleging a violation of this subparagraph, nor shall any plea be accepted on such complaint, nor shall the prosecution on such complaint be transferred to another division of the district court or to a jury-of-six session, until the history cold court receives a report from the depression commissioner of probation pertaining to the defendant’s record, if any, of cold war thematic essay prior convictions of such violations or of sport case essays assignment to history cold, an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense; provided, however, that the obermeyer essays provisions of this paragraph shall not justify the postponement of any such trial or of the acceptance of any such plea for more than five working days after the date of the war thematic defendant’s arraignment. The commissioner of probation shall give priority to requests for 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 prosecutor may apply for dissertation 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 global cold war thematic, the original complaint pending the determination of the application for the new complaint. If a new complaint is issued, the research on c+ + and court shall dismiss the original complaint and order that further proceedings on the new complaint be postponed until the cold war thematic essay defendant has had sufficient time to prepare a defense. If a defendant waives right to a jury trial pursuant to paper + and java, section twenty-six A of chapter two hundred and eighteen on a complaint under this subdivision he shall be deemed to have waived his right to a jury trial on cold war thematic essay, all elements of said complaint. (2) Except as provided in critical thinking activity subparagraph (4) the provisions of section eighty-seven of chapter two hundred and global history cold, 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 comparative + and java provisions of section six A of cold essay chapter two hundred and seventy-nine, the court may order that a defendant convicted of a violation of subparagraph (1) be imprisoned only on designated weekends, evenings or holidays; provided, however, that the provisions of this subparagraph shall apply only to a defendant who has not been convicted previously of such violation or assigned to an alcohol or controlled substance education, treatment or rehabilitation program preceding the ways to get out of depression date of the commission of the history cold war thematic offense for which he has been convicted. (4) Notwithstanding the provisions of subparagraphs (1) and (2), a judge, before imposing a sentence on a defendant who pleads guilty to or is found guilty of a violation of 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 defendant’s driving record, the criminal record of the de la defendant, if any, and such information as may be available as to the defendant’s use of alcohol and may, upon a written finding that appropriate and global history war thematic essay, adequate treatment is available to the defendant and the defendant would benefit from such treatment and that the safety of the public would not be endangered, with the defendant’s consent place a defendant on probation for two years; provided, however, that a condition for such probation shall be that the defendant be confined for no less than fourteen days in a residential alcohol treatment program and to critical thinking activity, participate in an out global history cold war thematic, patient counseling program designed for obermeyer study such offenders as provided or sanctioned by the division of alcoholism, pursuant to regulations to be promulgated by global war thematic essay said division in consultation with the department of correction and out of depression, 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 said residential alcohol treatment program. Such condition of probation shall specify a date before which such residential alcohol treatment program shall be attended and completed. Failure of the history essay defendant to comply with said conditions and any other terms of obermeyer essays probation as imposed under this section shall be reported forthwith to the court and proceedings under the global cold essay provisions of section three of newspaper journals chapter two hundred and seventy-nine shall be commenced.

In such proceedings, such defendant shall be taken before the court and if the court finds that he has failed to attend or complete the residential alcohol treatment program before the date specified in history cold the conditions of best out of depression probation, the court shall forthwith specify a second date before which such defendant shall attend or complete such program, and global history cold war thematic essay, 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 how can anthropology solve social problems furlough or receive any reduction from his sentence for good conduct until such person has served two days of such sentence; and war thematic essay, provided, further, that the commissioner of correction may, on the recommendation of the warden, superintendent, or other person in journals charge of history cold war thematic essay a correctional institution, or of the administrator of a county correctional institution, grant to an offender committed under this subdivision a temporary release in the custody of an best ways out of officer of such institution for the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution; or to engage in employment pursuant to a work release program. If such defendant fails to attend or complete the global history cold war thematic residential alcohol treatment program before the second date specified by the court, further proceedings pursuant to said section three of said chapter two hundred and seventy-nine shall be commenced, and the court shall forthwith sentence the defendant to imprisonment for research on c+ not less than thirty days as provided in history subparagraph (1) for obermeyer case essays such a defendant. The defendant shall pay for the cost of the services provided by the residential alcohol treatment program; provided, however, that no person shall be excluded from said programs for inability to pay; and provided, further, that such person files with the court, an affidavit of indigency or inability to pay and that investigation by the probation officer confirms such indigency or establishes that payment of such fee would cause a grave and serious hardship to global cold war thematic, such individual or to the family of such individual, and that the court enters a written finding thereof. In lieu of case essays waiver of the entire amount of said fee, the global history cold essay court may direct such individual to make partial or installment payments of the research cost of said program. (b) A conviction of a violation of global history war thematic subparagraph (1) of paragraph (a) shall revoke the license or right to operate of the person so convicted unless such person has not been convicted of 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 date of the commission of the how can anthropology help solve problems offense for which he has been convicted, and global war thematic, said person qualifies for techniques disposition under section twenty-four D and has consented to global history cold war thematic essay, probation as provided for critical activity for adults in said section twenty-four D; provided, however, that no appeal, motion for new trial or exceptions shall operate to stay the revocation of the cold war thematic essay license or the to get depression right to operate.

Such revoked license shall immediately be surrendered to the prosecuting officer who shall forward the same to the registrar. History Essay? The court shall report immediately any revocation, under this section, of a license or right to operate to the registrar and to the police department of the municipality in which the defendant is domiciled. Newspaper Research Journals? Notwithstanding the provisions of section twenty-two, the revocation, reinstatement or issuance of a license or right to operate by reason of a violation of paragraph (a) shall be controlled by the provisions of history war thematic essay this section and sections twenty-four D and twenty-four E. (c) (1) Where the license or right to operate has been revoked under section twenty-four D or twenty-four E, or revoked under paragraph (b) and such person has not been convicted of a like offense or has not been assigned to an alcohol or controlled substance education, treatment or rehabilitation program because of 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 sport case license or reinstate the right to operate to such person unless the prosecution of cold war thematic essay such person has been terminated in favor of the dissertation defendant, until one year after the date of conviction; provided, however, that such person may, after the expiration of three months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of global history war thematic essay a new license for employment or educational purposes, which license shall be effective for not more than an newspaper identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control, and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of six months from the date of conviction, apply for and shall be granted a hearing before the registrar for history the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. (2) Where the paper on c+ + and 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 global history cold war thematic, an alcohol or controlled substance education, treatment or rehabilitation program by out of depression a court of the commonwealth or any other jurisdiction because of a like violation preceding the date of the commission of the offense for global cold essay 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 thinking employment or education purposes, which license shall be effective for global cold war thematic not more than an identical twelve hour period every day on critical, 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 paragraph (a) of subdivision (1), or such treatment program mandated by history cold war thematic section twenty-four D, and the registrar may, in research paper + and java his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of 18 months from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the global cold essay 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 research journals, conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by cold war thematic 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 research + and java the licensee for the duration of the hardship license. (3) Where the history war thematic essay license or right to operate of any person has been revoked under paragraph (b) and such person has been previously convicted or assigned to case essays, 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 global, 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 critical thinking activity for adults right to operate to such person, unless the prosecution of such person has terminated in favor of the defendant, until eight years after the date of conviction; provided however, that such person may, after the expiration of two years from the date of the conviction, apply for global history cold war thematic and shall be granted a hearing before the dissertation 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 cold war thematic essay 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 out of, 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 history war thematic registrar for newspaper journals the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such a license under such terms and conditions as he deems appropriate and necessary. A mandatory restriction on a hardship license granted by global essay the registrar under this subparagraph shall be that such person have an ignition interlock device installed on each vehicle owned, each vehicle leased and research journals, each vehicle operated by global war thematic the licensee for the duration of the hardship license. (31/2) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the research paper java commonwealth or any other jurisdiction because of a like violation three times preceding the date of the commission of the offense for cold war thematic essay which such person has been convicted, the registrar shall not restore the license or reinstate the sport study essays right to operate of such person unless the history cold essay prosecution of such person has been terminated in favor of the defendant, until ten years after the how can help solve date of the conviction; provided, however, that such person may, after the expiration of five years from the date of the global cold war thematic 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 newspaper research journals, past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary; and provided, further, that such person may, after the expiration of global essay eight years from the date of conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license on a limited basis on the grounds of hardship and a showing by the person that the journals causes of the history cold essay 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 the licensee for the duration of the hardship license. (33/4) Where the license or the right to operate of a person has been revoked under paragraph (b) and such person has been previously convicted of or assigned to an alcohol or controlled substance education, treatment or rehabilitation program by a court of the commonwealth or any other jurisdiction because of a like violation four or more times preceding the date of the commission of the offense for best to get depression which such person has been convicted, such person’s license or right to operate a motor vehicle shall be revoked for the life of such person, and war thematic essay, 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 newspaper journals accordance with the provisions of chapter thirty A, from any order of the registrar of motor vehicles under the provisions of this section.

(4) In any prosecution commenced pursuant to this section, introduction into global cold essay, evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant’s biographical and thinking, informational data from war thematic, records of the department of probation, any jail or house of corrections, the department of correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant’s guilt on the primary offense, as evidence in any court of the commonwealth to prove the comparative research paper java defendant’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 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 global war thematic essay 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 essays, 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’s blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to history essay, the determination of the question of research whether such defendant was at such time under the influence of intoxicating liquor; provided, however, that if such test or analysis was made by or at the direction of a police officer, it was made with the consent of the global history cold war thematic defendant, the results thereof were made available to him upon his request and best ways to get out of, the defendant was afforded a reasonable opportunity, at global cold war thematic essay, his request and at his expense, to how can anthropology help, have another such test or analysis made by a person or physician selected by global cold war thematic him; and provided, further, that blood shall not be withdrawn from any party for the purpose of such test or analysis except by a physician, registered nurse or certified medical technician. Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by obermeyer study the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith, but the officer who placed him under arrest shall not be liable for false arrest if such police officer had reasonable grounds to war thematic, believe that the person arrested had been operating a motor vehicle upon any such way or place while under the influence of intoxicating liquor; provided, however, that in an instance where a defendant is sport obermeyer case essays, under the history war thematic age of twenty-one and such evidence is thinking for adults, that the percentage, by weight, of alcohol in the defendant’s blood is two one-hundredths or greater, the officer who placed him under arrest shall, in accordance with subparagraph (2) of history war thematic essay paragraph (f), suspend such defendant’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. How Can Help Solve Problems? A certificate, signed and global history cold war thematic, sworn to, by a chemist of the department of the state police or by a chemist of sport obermeyer essays a laboratory certified by the department of public health, which contains the results of an analysis made by such chemist of the percentage of alcohol in such blood shall be prima facie evidence of the percentage of alcohol in such blood. (f) (1) Whoever operates a motor vehicle upon history essay any way or in any place to which the public has right to research, access, or upon history cold war thematic any way or in any place to which the thinking 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 global cold war thematic essay the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor; provided, however, that no such person shall be deemed to have consented to a blood test unless such person has been brought for treatment to a medical facility licensed under the provisions of on c+ + and section 51 of war thematic essay chapter 111; and provided, further, that no person who is afflicted with hemophilia, diabetes or any other condition requiring the use of anticoagulants shall be deemed to comparative on c+ java, have consented to history cold war thematic essay, 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. Critical Thinking For Adults? If the cold war thematic person arrested refuses to techniques de la, submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for a period of at least 180 days and up to a lifetime loss, for such refusal, no such test or analysis shall be made and global history, he shall have his license or right to operate suspended in accordance with this paragraph for a period of 180 days; provided, however, that any person who is under the sport study age of 21 years or who has been previously convicted of a violation under this section, subsection (a) of history war thematic essay section 24G, operating a motor vehicle with a percentage by best ways to get depression 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, section 24L or subsection (a) of global war thematic essay section 8 of chapter 90B, section 8A or 8B of said chapter 90B, or section 131/2 of critical thinking activity for adults 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 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 global history cold, provided, further, that a person previously convicted of 3 or more such violations shall have his license or right to techniques dissertation, operate suspended forthwith for cold war thematic life based upon such refusal. If a person refuses to submit to any such test or analysis after having been convicted of newspaper research 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 global history war thematic essay eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of critical thinking subsection (b) of said section 24G, or section 131/2 of chapter 265, the registrar shall revoke his license or right to operate for life. If a person refuses to take a test under this paragraph, the history war thematic police officer shall: (i) immediately, on behalf of the registrar, take custody of such person’s license or right to best out of, operate issued by the commonwealth; (ii) provide to each person who refuses such test, on behalf of the registrar, a written notification of history war thematic suspension in a format approved by how can help solve social problems the registrar; and. (iii) impound the vehicle being driven by the operator and arrange for the vehicle to global war thematic, be impounded for case study essays a period of 12 hours after the operator’s refusal, with the global history essay costs for the towing, storage and maintenance of the vehicle to be borne by the operator.

The police officer before whom such refusal was made shall, within 24 hours, prepare a report of such refusal. 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’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor, and shall state that such person had refused to submit to a chemical test or analysis when requested by the officer to do so, such refusal having been witnessed by another person other than the defendant. Each report shall identify the critical activity for adults police officer who requested the chemical test or analysis and the other person witnessing the history essay refusal. Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to solve problems, suspend in a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to global history essay, operate which has been confiscated pursuant to this subparagraph shall be forwarded to the registrar forthwith. Newspaper? The report shall constitute prima facie evidence of the cold war thematic essay facts set forth therein at any administrative hearing regarding the suspension specified in this section. The suspension of a license or right to operate shall become effective immediately upon receipt of the notification of suspension from the police officer. Critical Activity? A suspension for a refusal of either a chemical test or analysis of breath or blood shall run consecutively and not concurrently, both as to any additional suspension periods arising from the same incident, and as to each other. No license or right to operate shall be restored under any circumstances and no restricted or hardship permits shall be issued during the suspension period imposed by this paragraph; provided, however, that the defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, section 24G, section 24L, or section 131/2 of chapter 265, and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license.

At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision. (2) If a person’s blood alcohol percentage is global war thematic essay, not less than eight one-hundredths or the comparative research paper on c+ + and person is under twenty-one years of age and his blood alcohol percentage is not less than two one-hundredths, such police officer shall do the history cold essay following: (i) immediately and on behalf of the registrar take custody of such person’s drivers license or permit issued by the commonwealth; (ii) provide to each person who refuses the test, on critical for adults, behalf of the registrar, a written notification of war thematic essay 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 anthropology help social a format approved by the registrar and shall be made under the penalties of perjury by the police officer. Each report shall set forth the grounds for the officer’s belief that the person arrested has been operating a motor vehicle on any way or place while under the influence of global history cold war thematic intoxicating liquor and that the person’s blood alcohol percentage was not less than .08 or that the person was under 21 years of age at the time of the arrest and whose blood alcohol percentage was not less than .02. The report shall indicate that the person was administered a test or analysis, that the operator administering the sport case study test or analysis was trained and global essay, certified in the administration of the sport study essays test or analysis, that the test was performed in global war thematic accordance with the regulations and thinking for adults, standards promulgated by the secretary of global history war thematic essay public safety, that the equipment used for best out of depression the test was regularly serviced and maintained and that the person administering the test had every reason to believe the global cold war thematic essay equipment was functioning properly at the time the test was administered. Ways? Each report shall be sent forthwith to the registrar along with a copy of the notice of intent to global, suspend, in best to get a form, including electronic or otherwise, that the registrar deems appropriate. A license or right to history, operate confiscated under this clause shall be forwarded to the registrar forthwith. The license suspension shall become effective immediately upon receipt by the offender of the notice of intent to suspend from a police officer.

The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to critical thinking activity for adults, this subparagraph exceed 30 days. In any instance where a defendant is under the age of twenty-one years and global war thematic, such evidence is that the percentage, by weight, of alcohol in the defendant’s blood is comparative research paper + and, 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’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’s license or right to operate a motor vehicle upon global cold essay receipt of a report from the police officer who administered such chemical test or analysis of the defendant’s blood pursuant to subparagraph (1). Each such report shall be made on a form approved by the registrar and shall be sworn to under the penalties of perjury by such police officer. Research Journals? Each such report shall set forth the global war thematic grounds for anthropology help the officer’s belief that the person arrested had been operating a motor vehicle on a way or place while under the influence of intoxicating liquor and that such person was under twenty-one years of age at the time of the arrest and whose blood alcohol percentage was two one-hundredths or greater. Such report shall also state that the person was administered such a test or analysis, that the operator administering the test or analysis was trained and global history cold war thematic, certified in the administration of such test, that the test was performed in accordance with the regulations and standards promulgated by the secretary of public safety, that the out of equipment used for such test was regularly serviced and maintained, and that the person administering the test had every reason to believe that the equipment was functioning properly at the time the test was administered. Each such report shall be endorsed by the police chief as defined in section one of global history essay chapter ninety C, or by sport obermeyer case essays 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’s blood was administered. Global History Cold? The license to operate a motor vehicle shall thereupon be suspended in accordance with section twenty-four P. (g) Any person whose license, permit or right to operate has been suspended under subparagraph (1) of paragraph (f) shall, within fifteen days of suspension, be entitled to a hearing before the registrar which shall be limited to the following issues: (i) did the police officer have reasonable grounds to believe that such person had been operating a motor vehicle while under the influence of social problems intoxicating liquor upon any way or in any place to global history war thematic essay, which members of the public have a right of access or upon sport obermeyer study any way to which members of the public have a right of access as invitees or licensees, (ii) was such person placed under arrest, and (iii) did such person refuse to submit to such test or analysis. If, after such hearing, the global history cold registrar finds on any one of the thinking activity for adults said issues in the negative, the registrar shall forthwith reinstate such license, permit or right to operate.

The registrar shall create and preserve a record at said hearing for judicial review. Within thirty days of the history cold war thematic essay issuance of the final determination by the registrar following a hearing under this paragraph, a person aggrieved by the determination shall have the to get out of depression right to file a petition in the district court for the judicial district in which the offense occurred for judicial review. Global History Cold War Thematic? The filing of a petition for judicial review shall not stay the research paper + and 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. War Thematic Essay? Review by the court shall be on the record established at anthropology solve, the hearing before the registrar. If the court finds that the department exceeded its constitutional or statutory authority, made an cold war thematic erroneous interpretation of the research law, acted in global history cold war thematic an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record, the court may reverse the registrar’s determination. [ Second paragraph of paragraph (g) of subdivision (1) effective until November 4, 2010.

For text effective November 4, 2010, see below.] Any person whose license or right to operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of chemical analysis of his breath may within ten days of such suspension request a hearing and upon such request shall be entitled to a hearing before the court in how can anthropology help solve problems which the global history war thematic essay 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 such person’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 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 de la court shall restore such person’s license, permit or right to history cold essay, operate and anthropology solve, shall direct the prosecuting officer to forthwith notify the criminal history systems board and history cold war thematic essay, the registrar of such restoration. [ Second paragraph of paragraph (g) of subdivision (1) as amended by paper + and 2010, 256, Sec. 63 effective November 4, 2010. For text effective until November 4, 2010, see above.] Any person whose license or right to history cold essay, operate has been suspended pursuant to subparagraph (2) of paragraph (f) on the basis of de la chemical analysis of his breath may within ten days of global cold essay such suspension request a hearing and upon research paper on c+ java such request shall be entitled to a hearing before the court in global cold essay which the underlying charges are pending or if the individual is under the age of twenty-one and there are no pending charges, in the district court having jurisdiction where the arrest occurred, which hearing shall be limited to the following issue; whether a blood test administered pursuant to anthropology social problems, paragraph (e) within a reasonable period of time after such chemical analysis of his breath, shows that the percentage, by global essay weight, of alcohol in such person’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 court finds that such a blood test shows that such percentage was less than eight one-hundredths or, relative to help social, such person under the age of twenty-one, that such percentage was less than two one-hundredths, the court shall restore such person’s license, permit or right to operate and shall direct the prosecuting officer to forthwith notify the department of criminal justice information services and the registrar of 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 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 history war thematic disposition in the case, be ordered to sport case study essays, participate in global history war thematic a driver education program or a drug treatment or drug rehabilitation program, or any combination of techniques 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 history cold any place to which the public has a right of access, or any place to which members of the for adults 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 global war thematic essay section seventeen or any regulation under section eighteen, or whoever without stopping and how can anthropology help solve, making known his name, residence and the register number of history cold war thematic his motor vehicle goes away after knowingly colliding with or otherwise causing injury to any other vehicle or property, or whoever loans or knowingly permits his license or learner’s permit to operate motor vehicles to critical, be used by any person, or whoever makes false statements in an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for the first offense be punished by a fine of not less than fifty dollars nor more than five hundred dollars or by imprisonment for global history war thematic 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 comparative research + and java not more than one thousand dollars, or by both such fine and imprisonment; and whoever is global history cold essay, found guilty of social 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 history war thematic essay 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 any provision of this paragraph if in the judgment of the court or justice receiving the complaint there is reason to dissertation, believe that the defendant will appear upon a summons. [ First paragraph of paragraph (a) of subdivision (2) as amended by 2010, 155, Sec. 11 effective September 30 2010. For text effective until September 30, 2010, see above.] (2) (a) Whoever upon any way or in any place to which the public has a right of 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 global cold war thematic essay public might be endangered, or upon newspaper research 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’s permit to history cold, operate motor vehicles to be used by any person, or whoever makes false statements in an application for such a license or learner’s permit, or whoever knowingly makes any false statement in an application for registration of a motor vehicle or whoever while operating a motor vehicle in violation of section 8M, 12A or 13B, such violation proved beyond a reasonable doubt, is the proximate cause of injury to thinking, any other person, vehicle or property by operating said motor vehicle negligently so that the lives or safety of the public might be endangered, shall be punished by a fine of not less than twenty dollars nor more than two hundred dollars or by imprisonment for not less than two weeks nor more than two years, or both; and whoever uses a motor vehicle without authority knowing that such use is unauthorized shall, for cold 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 whoever is comparative research, found guilty of cold essay a third or subsequent offense of such use without authority committed within five years of the earliest of his two most recent prior offenses shall be punished by a fine of not less than two hundred dollars nor more than one thousand dollars or by imprisonment for not less than six months nor more than two and case, one half years in a house of history war thematic essay 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. Help Solve Social? A summons may be issued instead of a warrant for arrest upon a complaint for a violation of any provision of this paragraph if in the judgment of the global war thematic essay court or justice receiving the complaint there is reason to believe that the defendant will appear upon a summons.

There shall be an assessment of case study essays $250 against a person who, by a court of the commonwealth, is convicted of, is placed on history, probation for or is granted a continuance without a finding for or otherwise pleads guilty to or admits to a finding of sufficient facts of operating a motor vehicle negligently so that the lives or safety of the public might be endangered under this section, but $150 of the $250 collected under this assessment shall be deposited monthly by the court with the state treasurer, who shall deposit it in the Head Injury Treatment Services Trust Fund, and paper on c+ + and, the remaining amount of the assessment shall be credited to the General Fund. Global History Cold War Thematic Essay? The assessment shall not be subject to reduction or waiver by the court for any reason. (a1/2) (1) Whoever operates a motor vehicle upon any way or in obermeyer study essays 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 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 global cold war thematic, which the public has a right of access or upon any way or in any place to research, 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 to avoid prosecution or evade apprehension after knowingly colliding with or otherwise causing injury to any person shall, if the injuries result in global history essay the death of a person, be punished by imprisonment in for adults 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 global history cold 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. Research Paper On C+ Java? 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 least one year of such sentence; provided, however, that the history cold essay commissioner of correction may on the recommendation of the warden, superintendent or other person in charge of a correctional institution, or the administrator of a county correctional institution, grant to an offender committed under this paragraph, a temporary release in the custody of an officer of such institution for anthropology help social problems the following purposes only: to attend the funeral of a relative; to visit a critically ill relative; to obtain emergency medical or psychiatric services unavailable at said institution or to engage in 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 war thematic, file. (b) A conviction of research a violation of history paragraph (a) or paragraph (a1/2) of subdivision (2) of this section shall be reported forthwith by de la dissertation the court or magistrate to the registrar, who may in any event, and shall unless the court or magistrate recommends otherwise, revoke immediately the license or right to operate of the person so convicted, and no appeal, motion for new trial or exceptions shall operate to stay the revocation of the license or right to operate. If it appears by the records of the registrar that the person so convicted is the owner of a motor vehicle or has exclusive control of any motor vehicle as a manufacturer or dealer or otherwise, the global history cold war thematic registrar may revoke the certificate of registration of any or all motor vehicles so owned or exclusively controlled. (c) The registrar, after having revoked the license or right to comparative research on c+ + and, 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 cold war thematic essay 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 obermeyer case study essays any provision of paragraph (a) or (a1/2) of history war thematic 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 best ways to get depression subparagraph (1) of paragraph (a1/2) until one year after the date of revocation following his conviction if for a first offense, or until two years after the date of global history cold essay revocation following any subsequent conviction; (ii) any person convicted of a violation of subparagraph (2) of critical thinking activity 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 global history war thematic essay revocation following any subsequent conviction; (iii) any person convicted, under paragraph (a) of using a motor vehicle knowing that such use is unauthorized, until one year after the date of revocation following his conviction if for a first offense or until three years after the date of revocation following any subsequent conviction; and (iv) any person convicted of any other provision of paragraph (a) until sixty days after the date of his original conviction if for a first offense or one year after the date of best ways out of revocation following any subsequent conviction within a period of cold essay three years. Notwithstanding the forgoing, a person holding a junior operator’s license who is convicted of operating a motor vehicle recklessly or negligently under paragraph (a) shall not be eligible for license reinstatement until 180 days after the 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 + and 3 years.

The registrar, after investigation, may at any time rescind the revocation of global war thematic 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 public have access as invitees or licensees negligently so that the lives or safety of the obermeyer essays public might be endangered. The provisions of history war thematic this paragraph shall apply in the same manner to juveniles adjudicated under the provisions of paper java section fifty-eight B of global cold chapter one hundred and nineteen. (3) The prosecution of to get out of depression any person for the violation of global history cold war thematic any provision of this section, if a subsequent offence, shall not, unless the techniques de la dissertation interests of justice require such disposition, be placed on file or otherwise disposed of except by global essay trial, judgment and sentence according to the regular course of criminal proceedings; and such a prosecution shall be otherwise disposed of only on motion in writing stating specifically the reasons therefor and comparative research java, 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 that the interests of justice require the global 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 ways to get, the registrar. (4) In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of global war thematic sufficient facts by newspaper journals either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the global cold commonwealth one or more times preceding the date of commission of the offense for which said defendant is being prosecuted. A Massachusetts DUI OUI jury returned verdicts of guilty on charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Superior Court of Massachusetts. October 16, 2003.

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR RELIEF UNDER MASS. R. CRIM. P 25(b)(2) On August 1, 2003, after a two week trial, a jury returned verdicts of guilty on activity for adults, charges of felony motor vehicle homicide, operating under the influence, and operating to endanger. Before me is the defendant’s motion, under Mass. Global Cold War Thematic? R. Crim. P. 25(b)(2), for (a) a required finding of not guilty, or (b) a reduction to the lesser included offense of misdemeanor vehicular homicide on ground of operating to endanger. Newspaper Research? For the reasons that follow, the defendant’s motion is DENIED.

At about 1:00 p.m. on September 1, 2001 thirteen-year-old Evan Holofcener was riding his bicycle on global cold, or beside Farmers Row (Route 111), Groton, when he was struck head-on by sport case study essays 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 global history cold war thematic Ayer, via Route 111, to Groton center. Evan died of his injuries later that afternoon. The defendant was subsequently charged with operating under the influence, operating to endanger, and felony motor vehicle homicide.1. It was the comparative paper + and java Commonwealth’s theory of the case that the defendant, who had been prescribed a number of global war thematic essay medications including diazepam (Valium), lorazepam (Ativan), and how can anthropology help social, oxycodone (Percocet), was under the history cold influence of at least one, and that her truck veered out of her lane of travel and onto the sidewalk where Evan was traveling. How Can Anthropology Solve Social Problems? The jury evidently agreed, and convicted the defendant of each of the cold essay charges against her.

The verdict of felony motor vehicle homicide (G.L. c. Newspaper Research? 90, §24G) required findings by the jury both that the defendant operated her vehicle negligently or recklessly so that the lives or safety of the public might have been endangered, and cold war thematic, that she was under the research journals influence of an intoxicating substance (on the Commonwealth’s theory, a scheduled narcotic or depressant). See Note 1, supra. The evidence as to each of these findings is therefore reviewed in turn. A. Evidence of Operating to Endanger. No third party witnessed the accident. Evidence as to negligent or reckless operation therefore consisted principally of the expert testimony of two accident reconstructionists, Trooper Kerry Alvino of the Massachusetts State Police, called by the Commonwealth, and Wilson G. History War Thematic? Dobson, P.E., called by the defendant. No lengthy review of either expert’s testimony is necessary here, except to case essays, say that Trooper Alvino opined, based on global history cold war thematic, 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 newspaper research journals the sidewalk immediately adjacent to the defendant’s lane of travel, and that the truck therefore must have left the global history cold roadway and traveled on the sidewalk.2 Mr. Dobson opined that the physical evidence was insufficient to determine, with a reasonable degree of scientific certainty, the location of the impact. The Commonwealth’s evidence, while it may not have compelled a finding of negligence, certainly warranted it. The jury’s verdict on this point was adequately supported by the evidence. B. Operating Under the Influence.

The “operating under” element of the OUI (G.L. c. 90, §24) and vehicular homicide (c.90, §24G) statutes require, for a conviction, that the defendant have been operating her motor vehicle “while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in [G.L. Thinking Activity? c. 94C, §1], or the vapors of glue.” As noted above, the Commonwealth contended that the defendant was under the influence of one or more of three prescription medications: diazepam (sold under the brand name Valium), lorazepam (Ativan), or oxycodone (Percocet) (referred to herein collectively as the “scheduled medications”). The first two are depressants; the last, a narcotic.3. There was no direct evidence as to when the defendant had last taken any of the scheduled medications; nor was there medical evidence (e.g., blood or urine tests) as to whether any were in her system, or in what quantity. The circumstantial evidence as to war thematic, the “operating under” element was as follows. 1. De La? CVS Pharmacy records. CVS Pharmacy records for the period May 26, 2001 and global war thematic, 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 journals latter three medications may affect driving ability, none is a controlled substance, or otherwise falls within the global war thematic OUI and vehicular homicide statutes. Even if the defendant were impaired by one or more of these medications, therefore, she would not have been “operating under the influence” within the meaning of these statutes, unless she was also impaired by one or more of the scheduled medications.

2. Testimony of Dr. Abela. The CVS records further showed that the oxycodone prescription which the defendant filled on August 29 was written by Dr. Andrew Abela. Dr. Ways To Get? 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 global tooth pain. He extracted a lower molar, and gave her the oxycodone prescription at that time. His practice is to recommend to patients that if they experience pain, they should first try ice, then Motrin, then Vicodin or Percocet (both narcotic analgesics)4; that they should use the minimum narcotic needed to control pain; and that they should not drive if they have taken a narcotic because it can cause drowsiness.

He further testified that patients who have had a tooth extracted sometimes experience “dry socket” three to five days after the procedure, which can cause pain to flare up at that time. Extraction of a lower tooth, and smoking following the ways out of depression procedure (the defendant is global essay, a smoker), both place the patient at increased risk for dry socket. 3. Package Warnings. The CVS records included copies of the “monographs” that CVS, when filling a prescription, produces and staples to the bag containing the pill bottle. The monograph sets forth patient information in paragraphs headed “USES,” HOW TO USE,” SIDE EFFECTS,” PRECAUTIONS,” DRUG INTERACTIONS,” OVERDOSE,” NOTES,” MISSED DOSE,” and “STORAGE.” Each monograph is lengthy (about half of an 8? ? 11 page of fairly small type). The following are excerpts from the monographs for the scheduled medications: (distributed with diazepam) SIDE EFFECTS: This medication causes drowsiness and how can anthropology, dizziness. Global History War Thematic Essay? Avoid tasks requiring alertness. Critical Thinking For Adults? Other side effects may include: stomach upset, blurred vision, headache, confusion, depression, impaired coordination, change in heart rate, trembling, weakness, memory loss, hangover effect (grogginess), dreaming or nightmares. … SIDE EFFECTS: This drug can cause drowsiness, dizziness, lack of cold war thematic coordination, grogginess, headache, nausea, dry mouth, blurred vision. If these effects continue or become severe, contact your doctor. Notify your doctor if you experience any of these effects while using this drug: confusion, hallucinations, depression, yellowing of the eyes or skin, slow pulse, trouble breathing, fever/chills, prolonged sore throat, unusual tiredness, unusual bleeding or bruising.

If you notice other effects not listed above, contact your doctor or pharmacist. PRECAUTIONS: … Use caution when performing tasks requiring alertness. … SIDE EFFECTS: This medication may cause constipation, stomach upset, lightheadedness, dizziness, drowsiness, nausea, or flushing. If any of these effects persist or worsen, contact your doctor or pharmacist promptly. Tell your doctor immediately if you have any of comparative research paper on c+ + and java these unlikely but serious side effects: loss of coordination, confusion, irregular heartbeat, slow/irregular breathing, anxiety, tremors. …. PRECAUTIONS: … Use caution when performing tasks requiring alertness such as driving or using heavy machinery. 4. Global History Cold War Thematic Essay? Evidence as to Therapeutic and Side Effects. As outlined below, with the exception of oxycodone (a narcotic pain medication), the other scheduled and the three unscheduled medications are all prescribed in the management of various psychiatric conditions and/or insomnia.

In recorded statements she gave to the police on September 2 and 6, 2001 (both of dissertation which were played for the jury), the defendant stated that she had undergone a miscarriage on May 19 of that year; suffered from global history, post-traumatic stress disorder; and had twice attempted suicide (most recently on August 21, which had resulted in her admission to Emerson Hospital’s psychiatric unit from then until the 29th). She also stated that she had been having trouble sleeping, and how can anthropology solve, that the night before the accident, she had gone to bed about 4:00 a.m., rising about 9:00 a.m. The Commonwealth’s medical expert (Dr. Global History War Thematic? Brower) testified concerning the indications, action, and sport obermeyer case study, 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 cold war thematic essay, severe pain. Side effects, which can occur in therapeutic doses, include sedation (sleepiness or drowsiness); nausea, stomach upset, and vomiting; impaired attentiveness, alertness, and vigilance; difficulty coordinating eye movements; and light-headedness.

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

Two milligrams is the maximum dose normally prescribed, and is a sedating dose. Of the non-scheduled drugs that the plaintiff was also prescribed: • Topomax is an anti-seizure medication sometimes prescribed “off label” to control mood disorders. Side effects can include somnolence, fatigue, and blunted mental reactions. • Effexor is an antidepressant, also used in generalized anziety disorder. Side effects can include nausea, dizziness, and war thematic, insomnia or somnolence, but not impairment of psychomotor skills. • Zyprexa is used to ways out of, treat severe insomnia.

Side effects can include drowsiness, tremor, stiffness and abnormal body movements. Generally speaking, the history cold essay three scheduled medications produce quick relief of comparative research + and acute symptoms. Both therapeutic and side effects may decrease with prolonged, regular use, but this is less likely with prolonged “PRN” (as needed) use. The other three medications take longer — 2 to 4 weeks — to be effective, and their side effects normally abate over time. Dr. Brower opined, in response to hypothetical questions which assumed the Commonwealth’s view of how the global cold accident happened (i.e., that the truck left the roadway for the sidewalk), that such things as difficulty keeping a vehicle on a straight course, delayed reaction time, and reacting to how can help solve, an emergency erratically or at the last minute, are consistent with the global history essay effects of the three scheduled drugs. Journals? There could be other causes as well (and patients vary in the severity of their reactions to these and global history cold war thematic, other drugs), but any or all of the how can anthropology help solve social problems scheduled drugs are capable of producing these effects. Topomax, Zyprexa, and (especially) Effoxor, however, are less potent, and much less consistently associated with these kinds of impairments, than are the scheduled drugs.

5. Defendant’s Statements Concerning Medications. The plaintiff made various statements, shortly after the accident, concerning the medications she was taking. In chronological order: 1. Ricardo Alcantara, who happened on the scene just after the accident and helped the plaintiff out of her truck, testified that the defendant told him she was on multiple medications; that she opened her purse and showed him “quite a few bottles”; and that he overheard her tell an cold EMT who responded that she was on six medications. 2. Adam Blumenthal, who appears to journals, have been the EMT to whom Alcantara referred, testified (with the global war thematic aid of 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’s “current medications,” percocet and critical thinking for adults, valium “PRN” (i.e., as needed). This was in response to the question he asks every patient,” What medications are you currently taking?” 4. In her September 2, 2001 and September 6, 2001 recorded statements to the Groton Police, the defendant said she had taken her medications the morning of the accident. She stated that she had not driven, or been out of the house, for two weeks prior to the accident (excepting her stay on a locked floor at cold war thematic, Emerson Hospital). She listed, and paper on c+ java, 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 global history cold war thematic, Topomax (“I take two”) — and comparative research + and, that “If I went without them, I’d be a fruit loop.”5 She took her Effexor shortly before leaving the global history essay house the day of the accident. She said that the packaging for Topamax, Zyprexa, and Effexor advised caution when operating heavy machinery, but that she had felt OK to drive on obermeyer study, September 1. She never mentioned diazepam, lorazepam, or oxycodone in her statement to history cold, the police. 6. Best To Get Out Of? Descriptions of the Defendant’s Affect. Five witnesses testified as to the defendant’s affect, as it bore on the question of possible impairment from drugs. 1. Blumenthal testified that as far as he could tell, the global history cold essay defendant was not “grossly” affected by drugs or alcohol.

2. Melissa Heys, a nurse with the nearby Groton School, came on the scene very shortly after the best ways accident, and went to see if the defendant needed help. She assessed her for global history war thematic head injury, and noted that she appeared alert, not drowsy, able to focus, oriented, unimpaired in to get depression speech, and able to follow the directions of the EMTs. 3. Steven Mickle, with the Groton rescue squad and a first responder, testified that the defendant appeared alert, oriented, and able to follow instructions and to respond to his questions. 4. Dr. Balser, who saw the defendant at Deaconess Nashoba, noted her to be alert and history war thematic, oriented “times 3? (i.e., oriented to ways to get out of depression, person, place and time). Cold War Thematic Essay? His bedside neurological exam showed no focal deficits and no signs of intoxication; “There was nothing about research, her that made me think she was under the influence.” He therefore saw no indication for cold war thematic performing a toxicology screen (but would not have performed one even if he had; since she had already admitted to research + and java, taking Ativan and Percocet, the presence of global cold war thematic 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 defendant at the scene; that he has known her since she was a little girl; and that in his opinion, she was under the influence of something. He smelled no alcohol and there was” nothing I could put my finger on,” but he did notice that she was unusually subdued, not “bubbly” as she normally was.7 He also testified that the defendant told him at the scene that she had swerved into the other lane (leftwards) to avoid the bicyclist.

He went to the hospital where she was taken, where she said she had swerved to the right to avoid cars in the oncoming lane. Hatch asker her if she remembered telling him she had swerved to sport, the left; she said she did not. 7. Erratic Driving. There was also the evidence of the defendant’s erratic driving the global cold day of the accident. As mentioned above, there was evidence from which the jury could have concluded that the accident occurred when defendant’s vehicle left her lane of paper on c+ + and travel and global cold essay, swerved onto the sidewalk, into the path of the oncoming bicyclist, for newspaper research no apparent reason: the pavement was dry; the weather was clear; she was heading north and cold war thematic essay, not into the sun; the road took a gradual curve to the left where the defendant drove off it to the right; and help solve problems, the jury could have discredited her statements both that she swerved right to avoid cars and essay, that she swerved left to avoid the bicyclist.

There was also testimony from two witnesses who, the jury could have found, encountered the best ways depression plaintiff minutes before the accident, between a mile and two away. The defendant was coming from her home in Ayer, northbound on global cold war thematic, Route 111 (known as Groton School Road in Ayer and research java, Farmers Row in Groton), to Groton Center (with a brief stop to drop off a video at a friend’s house on the way). George Krusen and Barry Curcio, who were driving together south on Route 111 in Ayer, encountered a truck coming toward them, driven by a woman at a high rate of global speed in de la the opposite (northbound) lane. As they and the truck approached one another at a curve in history cold war thematic the road, the truck swerved into newspaper, their lane and beyond, into history cold, the dirt by the (wrong) side of the road. It did not slow down, and techniques de la dissertation, 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 cold, her drive from Ayer to Groton was that her sandal “fell off once” in the general area of the incident described by Krusen and Curcio; that she might have swerved slightly; but “then that was fine.”

Both men generally described the techniques dissertation truck and history, driver,8 and both, at de la dissertation, the request of the Groton police, viewed the global history cold truck after the obermeyer study accident at the garage where it had been towed. Krusen (the driver) told the police he did not think the essay truck in the garage was the techniques one he had seen on Groton School Road. History War Thematic? Curcio, on the hand, testified that he was positive that it was the same truck. The time, place, and descriptions of the ways depression encounter were such that the jury would have been warranted in concluding that the driver was the war thematic defendant, and that her near-miss with the Krusen-Curzio vehicle took place just before the accident with Evan Holofcener.9. A. Renewed Motion for Required Finding. The defendant moved for a directed finding at the close of the research on c+ java Commonwealth’s case.

At that point, as required, I reviewed “whether the global cold essay evidence presented up to the time of a motion for a directed verdict [was] legally sufficient to how can help solve problems, permit the submission of the case to the … jury, to decide the innocence or guilt of the accused.” Commonwealth v. Latimore, 378 Mass. 671, 676 (1979). I determined that although the evidence that the defendant was under the influence of any of the scheduled medications at the time of the accident was entirely circumstantial, there was enough to warrant submitting the global war thematic case to the jury. The defendant has now renewed her motion, requiring me (a) to help solve social problems, look again at whether the Commonwealth’s case was sufficient, and (b) “to determine whether the Commonwealth’s position as to proof had deteriorated since it had closed its case.” Commonwealth v. Basch, 386 Mass. 620, 622 n. Global? 2 (1982). Both determinations require that I view the evidence in critical activity the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677-78; Commonwealth v. Torres, 24 Mass.

App. Ct. Global History Cold War Thematic Essay? 317, 323-24 (1987). “[T]he critical inquiry on techniques, review of the sufficiency of the evidence to support a criminal conviction must be not simply to global cold war thematic, determine whether the to get out of depression jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. … [The] question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of global history war thematic essay fact could have found the essential elements of the crime beyond a reasonable doubt.” Thus, to sustain the denial of a directed verdict, it is sport obermeyer case, not enough … to find that there was some record evidence, however slight, to support each essential element of the global cold offense; [there must have been] enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt. Latimore, 378 Mass. at 677-78, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); see Torres and Commonwealth v. Techniques Dissertation? Doucette, 408 Mass.

454, 456 (1990) (both applying the Latimore / Jackson standard of appellate review to trial judge’s review of motion for directed finding). As noted above, in the discussion of the history cold essay facts, Trooper Alvino’s testimony placed the defendant’s truck on the sidewalk, out of her lane of how can solve social problems travel and in the path of an cold oncoming cyclist, with no apparent explanation to be found in road, traffic, weather, or lighting conditions. This was sufficient to convict for operating to endanger. See, e.g., Commonwealth v. Research Journals? Siciliano, 420 Mass. 303, 307-08 (1995) (“evidence that the essay defendant drove while intoxicated, made a wide turn, crossed into the opposite traffic lane, swerved back and forth across the roadway, and nearly struck a traffic island” was sufficient); Commonwealth v. Bergeron, 398 Mass. Dissertation? 338, 340 (1986) (a finding of global history war thematic ordinary negligence suffices for the operating to endanger element of techniques dissertation vehicular homicide); Commonwealth v. Vartanian, 251 Mass. 355, 358 (1925) (presence of people is history cold war thematic essay, a relevant factor when considering whether defendant operated vehicle to endanger). Eyewitness evidence as to the operation of the best ways to get depression truck before the history cold war thematic accident was not required. See, e.g., Commonwealth v. Gordon, 389 Mass.

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

From the evidence summarized above, the jury could have concluded: 1. De La? That the defendant had been prescribed, had purchased, and global history war thematic essay, thus had access to the three controlled medications; 2. Critical For Adults? That her pattern of filling the global cold war thematic essay prescriptions for diazepam and (more especially) lorazepam indicated regular consumption; 3. That the recency of her filling prescriptions for thinking oxycodone (August 29, 2001) and lorazepam (August 31, 2001) — particularly when combined with the indications that she may have suffered very recently from dry socket (an indication for oxycodone) and, on global history war thematic essay, the night of August 31, from insomnia (an indication for lorazepam) — indicated recent enough consumption to ways out of depression, have affected her on September 1; 4. That lorazepam, even if consumed the night before, would still have affected her the day of the accident; 5. That the steadily diminishing list of medications given by the plaintiff following the accident — and the omission of the three controlled medications in global cold her statements to the police — indicated a consciousness of guilt, further bolstering the other circumstantial evidence of intoxication; 6. Techniques Dissertation? That the cold war thematic evidence of the comparative + and defendant’s erratic and dangerous driving, on two occasions11 separate but close in global history war thematic time and location, and the lack of any reasonable explanation for thinking for adults either, was evidence of impairment due to global cold essay, intoxication; 7. That the fact that the defendant was under the influence of prescription medications, rather than alcohol or a common drug of abuse, made it difficult for most of the witnesses who evaluated the defendant’s affect after the accident to detect impairment; 8. Critical Thinking Activity For Adults? That the global cold essay description of the defendant’s affect by Officer Hatch, who had known her for most of her life, was consistent with the sport study sedating effects of all three controlled medications; and. 9. That the war thematic essay plaintiff was adequately advised of the sedating and impairing effects of sport obermeyer case study essays he controlled medications, such that her intoxication was voluntary (see Commonwealth v. Darch, 54 Mass. App.

Ct. Global History? 713 (2002) and Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 360 (1982)). As noted above, the case lacked direct evidence that the defendant had taken any of the ways to get out of controlled medications recently enough to global history cold, be impaired by sport obermeyer case essays them, and it lacked direct evidence of what concentrations she had of cold war thematic essay any of them. Even the direct evidence of signs of intoxication in the defendant’s affect was thin, though perhaps explicably so (see ¶7 above). From the evidence that was presented, however, the jury had enough to how can social, conclude that the essay defendant had access to the drugs; that she had taken oxycodone recently and lorazepam both recently and regularly; that she appreciated the de la dangers of the controlled medications, both medically and (by the history cold essay time she spoke to the police) legally as well; and that her erratic and dangerous driving on the day of the accident lacked any reasonable explanation other than impairment by critical activity one or both of these drugs. This was enough to convict. The question of guilt cannot be left to conjecture or surmise. … However, circumstantial evidence is competent to establish guilt beyond a reasonable doubt.

An inference drawn from circumstantial evidence “need only global history, be reasonable and possible; it need not be necessary or inescapable.” Moreover, the evidence and the permissible inferences therefrom need only be sufficient to persuade “minds of ordinary intelligence and sagacity” of the out of defendant’s guilt. Global Cold Essay? Fact finders are not “required to divorce themselves of obermeyer case study essays common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings.” To the extent that conflicting inferences are possible from the global evidence, it is for the fact finder to resolve the conflict. Commonwealth v. Best Out Of? Gilbert, 423 Mass. 863, 868 (1996) (citations omitted). B. Motion to Reduce Verdict. Rule 25(b)(2) of the Rules of Criminal Procedure provides as follows:

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

The judge’s power under rule 25(b)(2), like our power under G.L. c. 278, §33E, may be used to global, ameliorate injustice caused by techniques de la the Commonwealth, defense counsel, the global cold jury, the judge’s own error, or … the interaction of several causes. Commonwealth v. Woodward, 427 Mass. Comparative Paper On C+ + And Java? 659, 666-67 (1998). As the trial judge in global history war thematic essay Woodward put it, a judge’s exercise of the Rule’s authority to reduce a verdict is less constrained than when considering a motion to set aside a verdict as unsupported by the evidence: The test here is no longer narrowly legal.

The judge, formerly only an umpire enforcing the rules, now must determine whether, under the how can anthropology social special circumstances of this case, justice requires lowering the level of guilt …. The facts, as well as the law, are open to consideration. Commonwealth v. Global? Woodward, 1997 WL 694119 (Mass .Super.; Zobel, J.) This broad authority is nonetheless subject to prudential limitations. The SJC added, to what has been quoted above from the Woodward opinion, that “[b]ecause such broad postconviction authority is obermeyer study essays, vested in the trial judge, we have counseled that a judge should use this power sparingly, and trial judges have in fact used their rule 25(b)(2) power infrequently.” Id. at 667, citing Commonwealth v. Keough, 385 Mass. 314, 321 (1982) (trial judge “should not sit as a `second jury’”); see also Commonwealth v. Carter, 423 Mass. 506, 512 (1996) (judge hearing motion to reduce verdict “is not to play the role of thirteenth juror” or to “second guess the jury”). Perhaps not surprisingly, it appears that the verdict-reduction power is exercised most frequently — as in Woodward — to history cold, walk the “fine line[s]” between the forms of malice required for the various degrees of comparative research paper + and java homicide.12 427 Mass. at 669. The defendant offers two reasons for a reduction of the verdict in this case, from felony to cold, misdemeanor vehicular homicide (i.e., setting aside the finding as to operating under and leaving intact the finding as to operating to sport obermeyer case study, endanger):

1. The lack of cold essay 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 how can help solve problems intoxication on the day of the accident; or that her driving ability was actually impaired; and. 2. The lack of any evidence whatsoever that the defendant abused any of the controlled medications, or otherwise failed to take them as prescribed (which the defendant frames, in part, as an argument for history cold essay “involuntary intoxication”). The evidence as to ingestion, intoxication, and impairment is summarized above and need not be repeated here. It was, as the defendant characterizes it, “slim,” at least in the sense that there was no single piece of evidence of which one could say that if accepted as true, it virtually compelled a finding of how can help solve problems intoxication by a controlled medication. That said, there was a good deal of circumstantial evidence which, taken in its entirety, is difficult to discount. Global Cold? Perhaps the strongest single piece of evidence came, not from medicine or from pharmacology, but from comparative on c+ + and, physics and accident reconstruction. If one accepts the conclusion of Trooper Alvino that the truck was on the sidewalk at the point of impact — which the jury were not required but were entitled to do — there might be a variety of history cold explanations for it, but the only one to be found anywhere in the evidence is that of intoxication. If one also accepts the paper on c+ 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’s disclaimer of any problem resulting from global cold, it — but it does little to explain a course of reckless driving, which endangered two lives and best ways to get depression, 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’s access to, her apparent pattern of using, and the likely effects of the controlled medications, and with Officer Hatch’s description of history cold essay her affect after the accident, the conclusion which the comparative research paper + and java jury drew, beyond a reasonable doubt, was a reasoned and rational one.

As noted above, the history cold war thematic verdict-reduction power conferred by G.L. c. 278, §11 and Rule 25(b)(2) is most often exercised in order to navigate the murky — and notoriously difficult, even on a jurisprudential level — world of human intent in homicide cases. These are cases in which the law, for reasons of social utility and fairness, requires a jury’s pronouncement upon what many would argue is inherently unknowable. Some room for reflection and correction is necessary, in research + and java all cases but especially in these. In this case, however, the central issue — whether or not the global cold war thematic defendant’s ability to perform a complex task such as driving was impaired by a controlled medication — was an ascertainable fact. De La Dissertation? Its determination on the evidence presented in this case was not a simple or an easy task, to be sure, but there is history cold war thematic essay, no reason to suppose that it was beyond the ability of the ways depression jury. That evidence, if necessarily circumstantial and incomplete, was nonetheless substantial in global essay its quantity and its overall quality. Best Ways Depression? Trial presentations for history war thematic essay both sides were excellent.

I do not think the jury’s verdict represented a miscarriage of justice. The defendant’s final argument — that medications taken as prescribed cannot be the activity basis of an OUI or a vehicular homicide conviction — misapprehends the conduct which G.L. c. 90, §§24 and 24G make criminal. Her argument to the contrary notwithstanding, neither the statutes, nor the conviction in this case, criminalizes the defendant’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 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 history cold war thematic, that she thereby caused the death of another person (for vehicular homicide).

Impairment by a prescription drug may be as dangerous as impairment by help social problems alcohol or a drug of abuse (which for some drugs is precisely the reason a prescription is required). The statute aims to keep the impaired driver off the road in either case. History Cold War Thematic Essay? While there are undoubtedly degrees of culpability to be reckoned with, these are best addressed — and will be addressed in newspaper research this case — in cold war thematic sentencing. For the critical thinking activity foregoing reasons, the defendant’s Motion for Relief Pursuant to Mass. R. Crim. P. 25(b)(2) is global war thematic essay, DENIED. Journals? The date for sentencing remains November 5, 2003 at 3:00 p.m., in Lowell. 1. A conviction for felony vehicular homicide requires findings both that the defendant was operating under the influence, and that she was operating to endanger(and that her operation caused the death of another). Misdemeanor vehicular homicide requires a finding either of operating under or operating to endanger, resulting in cold war thematic death. Both operating under and operating to endanger are therefore lesser included offenses in relation to felony vehicular homicide. 2. The week that trial began I held an evidentiary hearing, over two mornings, concerning the admissibility under Commonwealth v. Lanigan, 419 Mass.

54 (1994), of Trooper Alvino’s testimony. It was my assessment that the scientific methods employed, and obermeyer case essays, their application to this case, were sufficiently reliable to global history cold war thematic, warrant admission of Trooper Alvino’s testimony. 3. With respect to diazepam and comparative research paper java, lorazepam, I took judicial notice (and so advised the jury), at the Commonwealth’s request, that these are “depressants,” because they appear on the attorney general’s list of controlled substances, incorporated by history essay reference into c. 94C, §1 and thereby into critical thinking for adults, c. Cold War Thematic? 90, §§24(a) and newspaper research, 24G(a). Oxycodone’s status as a narcotic was established by the testimony of the Commonwealth’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. 5. She also stated that her dosages had been increased while she was in the hospital, and that this at first caused her to feel “out of it” and to sleep a lot, but that “now they have no effect on global history, me, and I’m fine.” In testimony that I excluded (after first asking if the how can anthropology solve defendant wished to waive the global history privilege which she had successfully asserted to exclude all prescribing information and warnings given by her psychotherapists, and being advised that she did not), she added that “the doctor said that it was completely fine for me to be driving on them, because I asked him yesterday … and he said it was fine. He said they have no effect on your driving.” 6. Dr. Balser and the police witnesses were in agreement that the journals decision whether or not to test for intoxication is a medical one, made by the physician and not under the direction of law enforcement. 7. This description of the defendant’s affect could be interpreted as at least generally consistent with the description, given by Dr. Brower, of the calming and sedating effects of global history cold war thematic lorazepam and diazepam. The jury might also have concluded, reasonably, that the effects of newspaper journals these medications would be less familiar to a layperson, including a police officer, than the effects of, say, alcohol.

8. Krusen recalled a Ford Ranger pickup (he drives one too) of an indeterminate color, possible two-toned, driven by a female with brown hair. Curcio remembered a small pickup whose color was unusual, unfamiliar to history, him, and difficult to describe beyond a “very dark green with something mixed in”; the driver was a female, in paper java her late teens or early 20s, with shoulder-length brown hair and looking “intense.” 9. The jury were instructed that the charges against cold war thematic the defendant all pertained to sport obermeyer case study essays, the accident with Evan Holofcener, not to the incident involving Krusen and Curcio. 10. Global War Thematic Essay? At the defendant’s request, and over the Commonwealth’s energetically pressed objection, I gave the jury a “specific unanimity” instruction, requiring that they agree on comparative paper + and java, which of the three scheduled medications (if any) had impaired the defendant’s ability to war thematic essay, drive. Anthropology Problems? “[W]hen the Commonwealth introduces at global, trial evidence of alternate incidents that could support the charge against the defendant, the jury must unanimously agree on which specific act constitutes the offense charged.” Commonwealth v. Kirkpatrick, 423 Mass. Best To Get Out Of Depression? 436, 442 (1996), cert. denied 519 U.S. 1015 (1996). Here, there was evidence of cold ingestion of multiple controlled medications, but a single homicide resulting from a single operation of a motor vehicle.

Massachusetts law is research, 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’s identification of the truck, and attributed Krusen’s failure to identify it to the fact that he had been the global war thematic essay driver, and therefore, preoccupied. 12. The SJC noted in Woodward, “Since 1979, the Commonwealth has appealed verdict reductions in only ten cases, of which seven were affirmed.” 427 Mass. at 667. De La? Eight of these cases (cited in note 12 to that opinion) were homicides; the history cold war thematic essay other two were drug cases, in activity for adults which trafficking convictions were reduced to possession with intent to distribute. Operating a motor vehicle while under the global cold war thematic influence of alcohol and operating a motor vehicle under a suspended license. 57 Mass. App.

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

The defendant appeals from the revocation of his probation, based on evidence that he was operating a motor vehicle under a suspended license. Probation had been imposed on November 16, 1999, in Brighton District Court, after the defendant admitted to sufficient facts to warrant a finding of guilty on global history cold war thematic essay, a charge of operating a motor vehicle under a suspended license. The judge continued the case without a finding and placed the defendant under the journals supervision of a probation officer on terms that, among others, required that he “obey all court orders and local, [S]tate and [F]ederal laws” until May 19, 2000. On January 2, 2000, the defendant was stopped by the Mashpee police on his way home from a football game. Cold War Thematic? The stop resulted in best out of 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 essay 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 critical for adults extending the global history war thematic probationary period to one year from the activity for adults date of the hearing and global history cold, imposing a suspended, ten-day house of correction sentence.2. On appeal, the defendant argues that the entry of a guilty finding and the order modifying the critical terms of his probation should be reversed because (1) the history cold grounds stated as the reason for revoking his probation were different from those for research journals which he had received written notification; (2) the defendant’s admission was unreliable, because the 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 global history war thematic essay admission was insufficient, as a matter of law, to support a finding that he had violated the law, because it was uncorroborated; and (4) his admission was not the product of voluntary actions, because at the time of the admission he was intoxicated, and techniques de la dissertation, prior to his admission he had not been given his Miranda warnings.

We affirm the revocation decision. We summarize the relevant facts as presented at history war thematic essay, the revocation hearing. On January 2, 2000, Officer Jon Read of the Mashpee police department was traveling northbound on Route 130. He was forced to steer his police cruiser to the right in order to avoid being hit by a green sport utility vehicle that had crossed the center line. Read testified at the hearing that he was unable to newspaper, see who was driving or how many people were in global history war thematic the vehicle. He turned his cruiser around and headed southbound on Route 130 in search of the vehicle. On C+ + And? Read found it parked at cold, the side of the road. Read observed the best ways defendant standing toward the back of the vehicle, on the driver’s side. Read stopped, exited, and walked toward the defendant. As Read approached, the defendant walked to the passenger side of the vehicle, sat in the passenger seat, and began to look through the glove box. Read asked the history cold essay defendant where the driver was; the defendant did not respond.3 At about that time, another individual, Kevin Crosby, the defendant’s son-in-law, emerged from the woods by the side of the de la road, where he apparently had been urinating.

Read asked both the essay defendant and Crosby who was driving; neither responded. Read observed food and a cooler with numerous beers in it in comparative + and java the rear of the global history vehicle. Read determined that the defendant was the how can help 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 Coronella’s police car and Crosby was placed in the rear of Read’s police car, both for transportation to history war thematic essay, 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 the station with Crosby, he informed Coronella that Crosby had implicated the defendant as the critical activity driver. Read obtained a signed, written statement from Crosby that the history war thematic defendant was the driver. After conducting sobriety tests, which he said the comparative research paper + and defendant failed, Coronella placed the defendant under arrest for operating the motor vehicle on Route 130 while under the influence of global cold intoxicating liquor. A breathalyzer test revealed the defendant to have a blood alcohol reading of .16.

Officer Sean Sullivan, who had been called to inventory the contents of the defendant’s vehicle at the scene, stated in his report that, at the station, he noticed that both the defendant and Crosby “exhibited extreme symptoms of intoxication.” Coronella’s report of the de la dissertation booking procedure stated that the defendant was read and understood his Miranda rights. Read testified that he believed he remembered that the defendant had been read his rights at that point. According to both Coronella’s and Read’s reports, after the war thematic essay booking procedure, the defendant was again asked how he had arrived at the football game that day. Both Coronella’s and Read’s reports explain that the defendant answered that he drove from his house in Brockton to de la, his son-in-law’s, Crosby’s, home in East Bridgewater. Crosby then drove the defendant’s vehicle to the game. History? When pressed on this point during cross-examination, Read testified that he had no memory of the defendant telling him that his sister had given him a ride to Crosby’s house, but acknowledged that it was “possible” the defendant had made such a comment. The judge did not credit Crosby’s statement, as related by Officer Read, that the critical thinking defendant had been driving the vehicle at the time it was stopped. Global? Rather, the judge credited the defendant’s admission, as reported by Coronella and Read, that he had driven from his house to Crosby’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 we affirm.

Written Notification. The defendant first argues that the written notice of newspaper surrender referenced only the two charges for which he was arrested by the Mashpee police, and contained no reference to the uncharged misconduct that occurred earlier in the day, when he drove from his home to Crosby’s home under a suspended license. The issue was first raised in the defendant’s second motion for reconsideration, which was denied by the judge who had found a probation violation. We agree with the defendant that the written notice was limited on its face to the two charges filed in global connection with the incident that occurred on activity, Route 130, and global war thematic essay, that the journals notice of global history 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 newspaper research, concede that, because of cold war thematic essay lack of notice, the best to get earlier operation cannot form the basis of the instant revocation. We disagree.6. While there can be no doubt that written notice of the history cold claimed violations are included among the “minimum requirements of due process,” Commonwealth v. Durling, 407 Mass. 108, 112-113, 551 N.E.2d 1193 (1990),7 due process is sport obermeyer, not an inflexible concept. Ibid. Flexibility is important both to insure the offender the essay opportunity inherent in the grant of conditional liberty that probation affords, and to insure the ways depression Commonwealth the cold ability to deal expeditiously with a violation of that opportunity.

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

In this case, the written notice did not specifically state the basis upon which the judge based the revocation. Journals? The defendant’s admission, however, of global history cold having driven the newspaper vehicle earlier in the day was included in the police reports that were generated in relation to the charges listed on the notice of probation violation. Essay? In any event, assuming that the failure to specifically enumerate the misconduct on help social, 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 history cold, the inception of the best hearing, and in vigorously cross-examining the history cold war thematic essay officer on how can anthropology help solve social problems, the issue, amply support the conclusion that any error here was harmless. For example, at the opening of the hearing, counsel indicated that the defendant’s principal concern was with the 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 global history cold, accept a recommended disposition on the probation violation. After discussion about a possible disposition, counsel told the judge the following: “There is a second matter of operating after a suspended license. And there are two incidents of operation, one of which I understand my client is accused of admitting that he did. I’m not saying that is his position, but in the police report it indicates something to that effect. “If we could just go forward with regard to techniques de la dissertation, that issue and not stipulate to global war thematic, the OUI, it would still be a technical violation.” (Emphasis supplied.) At a later stage in the proceeding, counsel engaged in vigorous cross-examination of the officer with regard to obermeyer study, the defendant’s statement that he had driven the car earlier in the day, and went so far as to elicit a statement from the officer that the defendant might also have told him that a family member, rather than the global cold war thematic essay defendant, drove the car to newspaper journals, Crosby’s house. Counsel was amply prepared at the start of the hearing to consider the issue of the defendant’s admitting to history war thematic, the first occasion of driving after suspension of his license. On the facts of this case, the defendant is unable to demonstrate prejudice resulting from any lack of notice, and this failure to show prejudice is fatal to his claim of error.

See Delisle v. Commonwealth, 416 Mass. 359, 362, 622 N.E.2d 601 (1993). See also Commonwealth v. Odoardi, 397 Mass. Paper Java? 28, 31-32, 489 N.E.2d 674 (1986). Compare Commonwealth v. Streeter, 50 Mass.App.Ct.

128, 131-132, 735 N.E.2d 403 (2000). Exclusion of the evidence. The defendant next contends that his admission to police that he had been driving earlier in global history war thematic essay the day should have been excluded because (a) the statement was made either prior to his being given his Miranda warnings or, if made after the warnings, his waiver was not knowing, voluntary, or intelligent due to dissertation, his state of history essay intoxication; (b) again due to his state of intoxication, the statement was not made voluntarily for the purposes of the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the how can help solve social Massachusetts Declaration of Rights and therefore should not have been considered; and (c) the alleged admission was unreliable and insufficient to global history essay, form the basis of the best out of probation surrender, since it lacked corroborative evidence and history essay, was contradicted by information contained in the police reports. Journals? We disagree with all three contentions. (a) Miranda issue. Contrary to the defendant’s contention, the evidence adduced at the hearing amply demonstrates that he was afforded his Miranda rights before he made the statement that formed the global history cold basis of the violation. The record shows that the conversation reported by Coronella, in which the defendant admitted to driving the vehicle that morning, took place after the defendant had been given his warnings; Read’s testimony at the hearing supports this version of + and events.8. Moreover, even were we to agree that the defendant’s admission was obtained prior to war thematic, his being given his Miranda rights, the statements were admissible.

Following the newspaper research journals rationale established in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), and in certain other Federal cases dealing with the use of evidence obtained in violation of the Fourth Amendment, the 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 defendant’s Miranda rights, those same inculpatory statements, perhaps subject to global essay, certain considerations not present here, might properly provide the basis for research a probation surrender. Global? Where, as here, the primary focus of the police inquiry, including the arrest of the defendant and Crosby for for adults reasons of protective custody, and the ensuing questioning, sobriety tests, and ultimate charge were to prosecute the incident of driving under the influence, the exclusion at global history war thematic, a probation revocation hearing of the best ways to get depression defendant’s statement would be unlikely to serve any deterrent purpose. See Commonwealth v. Olsen, 405 Mass. History War Thematic Essay? 491, 493-494, 541 N.E.2d 1003 (1989). See also Commonwealth v. Vincente, supra at 280, 540 N.E.2d 669. (b) Fifth and Fourteenth Amendment voluntariness.

Simon next argues that the statement he made at comparative on c+ java, the police station should have been inadmissible at the probation revocation hearing, on the. basis that it was not made voluntarily due to global history cold essay, his intoxication, and therefore was taken in violation of his Fifth and Fourteenth Amendment due process rights. The defendant’s claim of comparative paper on c+ + and intoxication, standing alone, is history cold essay, insufficient to establish that his statement was involuntary. See Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 183 #038; n. Obermeyer Essays? 8, 472 N.E.2d 1354 (1985). In any event, even were we to conclude otherwise, the defendant is not entitled to global history, relief. In the context of a criminal trial, where evidence of intoxication has been presented, and de la, the voluntariness of history cold war thematic statements is in issue, even where there is no question that Miranda warnings were given before a defendant made admissions, a trial judge is obliged to make an affirmative finding on the voluntariness of those admissions under the Fifth and Fourteenth Amendments before a jury is allowed to consider them.

See Commonwealth v. Van Melkebeke, 48 Mass.App.Ct. 364, 366, 720 N.E.2d 834 (1999). See also Commonwealth v. Mello, 420 Mass. 375, 383, 649 N.E.2d 1106 (1995) (“special care is activity for adults, taken to review the issue of voluntariness where the history defendant claims to have been under the research java influence of drugs or alcohol”). Such special care with regard to intoxication is history essay, necessary; the United States Supreme Court has noted, “as interrogators have turned to more subtle forms of psychological persuasion, courts have found the newspaper journals mental condition of the defendant a more significant factor in the `voluntariness’ calculus.” Colorado v. Connelly, 479 U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Although we have found no case in Massachusetts that resolves whether a similarly careful inquiry to global history war thematic, determine admissibility need take place on the bases of Fifth and Fourteenth Amendment due process at a probation revocation hearing, we find instructive the reasoning in the decisional law related to Fourth Amendment violations. In such circumstances, most Federal courts refuse to critical thinking activity for adults, apply the exclusionary rule to probation revocation proceedings absent evidence of police harassment, or at least police knowledge of the petitioner’s probationary status.

See United States v. Gravina, 906 F.Supp. Global History? 50, 53-54 (D.Mass. 1995).9 Nothing in the evidence here points to police harassment when the defendant was interviewed or when he made the statement after being read his Miranda rights. Compare United States v. Gravina, supra at research, 54, quoting from United States v. James, 893 F.Supp. Global History Essay? 649, 650-651 (E.D.Tex.1995) (“an element of constancy should be present in the type of harassment necessary to invoke the sport obermeyer case study essays exclusionary rule…. [W]here harassment may be a singular act, at least some irregularity in cold war thematic the conduct of the police officials must be present”). While the anthropology solve social police officers were aware of Simon’s probationary status, only. two Federal jurisdictions exclude statements for this reason alone.10 See, e.g., United States v. Gravina, supra at 53-54. See also note 9, supra.

Further, the police had already placed the cold defendant under arrest for driving under the influence, and journals, the record shows that their inquiry was targeted to elicit evidence in support of a conviction on that offense, rather than for history war thematic essay the purpose of eliciting information by which probation could be revoked. Best To Get Out Of? Compare Commonwealth v. Vincente, 405 Mass. at 280, 540 N.E.2d 669, and cases cited (“The Federal courts have concluded that, in most instances, a police officer is primarily interested in obtaining evidence with which to convict a defendant. Revocation of history war thematic probation is generally only a minor consideration, and therefore the risk that illegally obtained evidence might be excluded from such proceedings is likely to have only a marginal additional deterrent effect on illegal police misconduct”). In addition, we note that the paper + and United States Supreme Court has drawn no distinction in its analysis of the “voluntary” waiver of the personal right against self-incrimination protected by the Miranda warnings on the one hand, and the due process-based “voluntariness” of a statement protected by the Fifth and Fourteenth Amendments on the other hand. See Colorado v. Connelly, 479 U.S. at 169-170, 107 S.Ct. 515.

Similarly, the Supreme Court “cautioned against expanding `currently applicable exclusionary rules,’” 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 Lego v. Twomey, 404 U.S. 477, 488-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). We see no reason that the exclusionary rule be applied in these circumstances. “In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the cold essay `application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.’ 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. For Adults? 613, 38 L.Ed.2d 561 (1974).” Commonwealth v. Olsen, 405 Mass. at 493, 541 N.E.2d 1003. “`Evidence that a probationer is not complying with the conditions of probation may indicate that he or she has not been rehabilitated and continues to pose a threat to the public.’ Commonwealth v. Global History Cold? Vincente, supra at techniques, 280, 540 N.E.2d 669. Accordingly, the State has an overwhelming interest in being able to return an individual to imprisonment without the burden of a new adversary criminal trial if in history cold essay fact [the probationer] has failed to abide by the conditions of his [or her probation].’ Morrissey [v. Comparative Research On C+ + And Java? 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 global cold exclusionary rule.” Commonwealth v. Anthropology Help? Olsen, supra at 493-494, 541 N.E.2d 1003. Thus, we conclude that the exclusionary rule does not render the defendant’s statement inadmissible, even were we to determine that the history cold statement had been given involuntarily, when, as here, there is no evidence that the statement was the product of police harassment or the result of a police focus to obtain evidence specifically for depression a probation revocation hearing. (c) Reliability of the admission. Simon finally argues that the cold statement, that he operated the vehicle from his home to Crosby’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 best to get depression, 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 “full panoply of constitutional protections,” due process requires that probationers be afforded some protections upon an attempt to revoke their probation, as liberty interests are at stake. Global War Thematic? Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193. The rules, however, are flexible; hearsay is journals, admissible, and all reliable evidence should be considered. See id. at 113-117, 551 N.E.2d 1193. Even the right of confrontation may be denied if the “hearing officer specifically finds good cause for not allowing confrontation.” Gagnon v. History War Thematic? Scarpelli, 411 U.S. 778, 786, 93 S.Ct.

1756, 36 L.Ed.2d 656 (1973). See Durling, supra at 115, 551 N.E.2d 1193. At a revocation hearing, due process has the ultimate goal of providing an comparative research paper on c+ + and accurate determination as to whether revocation is proper. See Durling, supra at 116, 551 N.E.2d 1193. Here, there was ample evidence to corroborate the defendant’s statement. It is undisputed that the two went to the football game in the defendant’s car. Global History Essay? The defendant lived a distance from Crosby’s home, and de la, the two were returning there when they were stopped by the police. No other explanation was offered of how the defendant and history cold war thematic essay, his vehicle got from his home to Crosby’s.11 The cases cited by the defendant in his brief, Commonwealth v. Forde, 392 Mass. 453, 457, 466 N.E.2d 510 (1984), and techniques dissertation, Commonwealth v. Leonard, 401 Mass. Global History Cold War Thematic? 470, 473, 517 N.E.2d 157 (1988), are inapposite; in neither case was there anything at out of depression, all to war thematic, corroborate the admission. As there was corroboration in de la this instance, we need not reach the issue whether corroboration is in fact necessary for an admission in the context of cold war thematic essay a hearing on best ways to get out of, surrender.

As to the claim that the hearsay was unreliable, we note only that Read testified that he was present when the defendant admitted to driving earlier in the day, and that he had made a note of war thematic it in his police report. Read was present at how can anthropology help solve social problems, 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 officers were investigating him for another alleged crime, operating under the influence. The defendant, though present in court, chose to remain silent. History Cold War Thematic Essay? 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 516 (7th ed.1999). The hearsay was both credible and newspaper research journals, 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 history cold essay, defendant then fails to meet any conditions attached to comparative research on c+, the continuance, he may be found guilty and sentenced). 2. In accordance with Rule 9 of the District Court Rules for Probation Violation Proceedings (West 2001), the proceedings, which resulted in history war thematic the imposition of a guilty finding and the revocation of straight probation, were properly handled pursuant to the procedures applicable to a probation revocation. See generally Commonwealth v. Maggio, 414 Mass. 193, 195-196, 605 N.E.2d 1247 (1993). 3. We look to best to get out of depression, the testimony given by Officer Read at the surrender hearing.

Police reports filed after the arrest indicate a somewhat different answer to Read’s initial questions. Any variance is not material to history war thematic essay, our decision. 4. At the conclusion of the hearing, the judge unequivocally stated that he did not credit Crosby’s statement. In his written findings, the judge noted that he found the defendant in violation based upon his operation after suspension. He also indicated that evidence on which he relied in how can anthropology help solve social problems making the finding included “Mashpee police reports”; “Statement of global cold Kevin Crosby”; “Mashpee P.O. Comparative? John Read”; “Breath test on global history essay, D.” Given the written finding that revocation was based on “Operating motor vehicle while suspended,” and the judge’s unequivocal statement that he was not relying on Crosby’s statement, we adopt the view that the obermeyer revocation was based on the defendant’s admission that he had been operating the vehicle earlier that day.

Both the Commonwealth and the defendant adopt that position in this appeal. 5. With respect to the alleged violations, the notice stated in full: “You are hereby notified of the following alleged violation(s) of the probation order that was issued to you in the criminal case identified above: You violated a criminal law of the [C]ommonwealth, namely: January 2, 2000 ct process 0089CR00009A op. under infl. # 0089CR00009B op. after susp. lic.” 6. Global History Essay? The Commonwealth, having conceded that notice was defective, argues that, even though the techniques de la dissertation trial judge indicated in his findings that he did not rely on Crosby’s statement that the defendant was driving, there is ample additional circumstantial evidence to tie the defendant to the operation of the vehicle at the time of the stop. Having determined that revocation was proper on the grounds cited by the judge, we need not reach the Commonwealth’s arguments in this regard. 7. See as well Rule 3(b)(ii) of the cold District Court Rules for Probation Violation Proceedings, which sets forth notice requirements. Sport Study Essays? The rule went into effect four days prior to the notice of surrender. 8. Cold War Thematic Essay? Coronella’s report states in pertinent part: “During the booking process [the defendant] was read his Miranda rights state [sic ] that he understood them. Comparative Paper On C+? [The defendant] was read his rights under [G.L. Global History? c.] 265 section 5a and stated that he wanted to take the breath test. [The defendant] was given the comparative research on c+ java test and global cold, the results were as follows…. [The defendant] was again asked how he got to the … game. He stated that he drove from his house in Brockton to Crosby home in East Bridgewater, picked up Crosby and then Crosby drove his vehicle to the game.” Read verified during his testimony at the hearing that the statements were made after Miranda warnings were read at the station.

9. The United States District Court for Massachusetts explained: (1) the Third, Fifth, Sixth, Seventh, Eighth, Ninth, and critical, Tenth Circuits have refused to apply the exclusionary rule to evidence seized in global history cold war thematic essay violation of the Fourth Amendment when determining probation, parole, or supervised release revocation; (2) most of anthropology help solve social these jurisdictions provide an history cold essay exception that such evidence is inadmissible where the defendant suffered harassment; (3) the Second Circuit applies the exclusionary rule where the probation officer is aware of the target’s probationary status, but not where a police officer is unaware of that status; and (4) the Fourth Circuit “stands alone” in excluding all evidence obtained by unconstitutional searches from probation revocation hearings. Research Journals? See United States v. Gravina, supra, and cases cited. Cold Essay? See also Annot., Admissibility, in anthropology Federal Probation Revocation Proceeding, of Evidence Obtained Through Unreasonable Search and Seizure or in Absence of Miranda Warnings, 30 A.L.R. Fed. Global History Cold War Thematic Essay? 824, 829-835 (1976 #038; Supp.2002). 10. The Supreme Judicial Court, in Commonwealth v. Olsen, 405 Mass. 491, 496, 541 N.E.2d 1003 (1989), expressly left open the question whether a police officer’s knowledge of comparative research paper a probationer’s status would compel exclusion of evidence obtained. 11.

Defense counsel makes much of the fact that on cross-examination, Read admitted that it was possible that he had been told that a family member had driven the global cold essay defendant from his home to ways depression, Crosby’s home. This statement came after vigorous cross-examination in which Read stated that he did not recall any statement that the defendant had made to the effect that a family member had driven to Crosby’s. Any determination of the global cold weight and how can solve social, credibility of Read’s testimony was for the judge, and the contradiction was not so egregious as to cause us to global history cold essay, conclude that the + and java judge committed plain error. See Commonwealth v. Global History Cold Essay? Tate, 34 Mass.App.Ct. 446, 450-451, 612 N.E.2d 686 (1993). DUI OUI offense, Defendant, was stopped at a sobriety checkpoint, the 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 sport case study essays, the checkpoint for administration of global cold war thematic essay field sobriety tests. 76 Mass.App.Ct. 908. Cheryl A. BAZINET.

Appeals Court of Massachusetts. James M. Milligan, Jr., Norwell, for newspaper research journals the defendant. Michelle R. Global History Cold? King, Assistant District Attorney, for the Commonwealth. Cheryl Bazinet, the defendant, was stopped at a sobriety checkpoint on newspaper research, Route 20 in global history war thematic essay the town of Auburn on July 22, 2007. A State trooper working the techniques de la dissertation checkpoint spoke with her and detected an odor of alcohol. Consequently, the trooper, although he had made no observations of the global history cold manner in which she had been operating her vehicle, directed her to an area adjacent to the checkpoint for administration of help solve social problems field sobriety tests. When Bazinet stepped out of the history vehicle, the trooper observed that she had ?glossy, bloodshot eyes? accompanied by ?a strong odor of an intoxicating beverage on her breath as she spoke.? Bazinet consented to a breath test which revealed an alcohol level greater than .08%, and she was charged with operating under the influence. See G.L. c. 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 dissertation District Court reported the global war thematic essay case for an answer to two questions of law he said arose frequently in the District Court. See Mass.R.Crim.P. 34, as amended, 442 Mass. 1501 (2004); Mass.R.A.P.

5, as amended, 378 Mass. 930 (1979). See generally Commonwealth v. Caracciola, 409 Mass. Techniques? 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 history war thematic, OUI, to ways to get depression, further detain an history cold operator directing them from the screening area to the OUI checking area (Pit). Is mere odor of help alcohol sufficient reasonable suspicion to further detain an operator for further testing? ?2. Is the history war thematic essay 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’s Order (06-DFS,056),[[1] constitutionally valid??

The general subject of the reported questions was discussed by the Supreme Judicial Court in Commonwealth v. Research Journals? Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009), a case decided after the report. In essence, the court in Murphy held that sobriety checkpoint procedures carried out in 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 history war thematic, both questions. Dissertation? Insofar as question one is concerned, General Order TRF-15 permits, and now requires, see Murphy, supra at 320 n. 3, 910 N.E.2d 281, further screening after the initial checkpoint stop ?[i]f there is reasonable suspicion, based upon articulable facts, that the operator … is committing … an OUI violation.? In Murphy, the troop commander’s order, like the troop commander’s order in cold war thematic essay 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 alcohol? was one of the ?clues of impaired operation? for which the screening officers were to critical activity, check and global history essay, which, if observed, would provide a basis for further screening and investigation. Id. at 320, 328, 910 N.E.2d 281.2 The court’s judgment in that regard is consistent with judgments made by courts in 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 techniques dissertation motorist’s ability to operate a motor vehicle?); Nickelson v. Global? Kansas Dept. of for adults Rev., 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (finding that odor of history cold alcohol was sufficient to allow officer to conduct further investigation); State v. Hernandez-Rodriguez, Ohio App. 11th Dist. No.

2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957 (Sept. 28, 2007) (explaining that ?the ?strong odor? of alcohol, by itself, can trigger reasonable suspicion of driving under the influence?). Turning to question two, the opinion in Murphy did not consider the techniques dissertation Division Commander’s Order 07-DFS-056, which is global history cold essay, designed to cover all highway safety programs, not simply those designed to detect drivers who are impaired by research java alcohol. From the record, however, it appears that the checkpoint the State police conducted in this case was governed both by General Order TRF-15 and by operational instructions contained in a letter from the troop commander to the officer in charge of the checkpoint, as well as by Order 07-DFS-056. Order TRF-15. and the operational instructions are, in all material respects, identical to the instructions discussed by the court in Murphy. As noted, the court ruled that checkpoints carried out in accordance with those orders were constitutional. History Cold? Insofar as Order 07-DFS-056 adds something new to the instructional matrix, it imposes a ?zero tolerance? enforcement policy with respect to all observed violations, thus reducing further the kind of discretionary enforcement that in other cases has been found constitutionally wanting. Critical For Adults? See, e.g., Commonwealth v. Global? McGeoghegan, 389 Mass. 137, 143-144, 449 N.E.2d 349 (1983); Commonwealth v. Anderson, 406 Mass.

343, 347, 547 N.E.2d 1134 (1989). In light of the foregoing, the answer to reported questions one and two is ?yes.? 1. This appears to be a typographical error. The Division Commander’s Order included in the record appendix is numbered ?07-DFS-56.? 2. The court’s complete list of ?clues of impaired operation? was ?the condition of the eyes of the operator, the critical thinking odor of alcohol, the speech of the global history cold operator, alcohol in plain sight in the vehicle, and other indicators.? Murphy, supra at 320, 910 N.E.2d 281. Comparative On C+ + And Java? Later in the opinion, the court said that ?TRF-15 requires a predicate of global cold war thematic essay reasonable articulable suspicion based on activity for adults, the observations of the initial screening officer (e.g., red eyes, slurred speech, container of alcohol in plain view),? omitting ?odor of alcohol? from that list. Id. at 328, 910 N.E.2d 281. Cold Essay? 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 influence of intoxicating liquor (OUI), G. L. c. 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. 90, § 24(2)(a). COMMONWEALTH OF MASSACHUSETTS APPEALS COURT. Entered: January 27, 2011. NOTICE: Decisions issued by thinking activity for adults 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 war thematic essay case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the on c+ + and limitations noted above, not as binding precedent. MEMORANDUM AND ORDER PURSUANT TO RULE 1:28. As a consequence of a motor vehicle accident on January 26, 2008, a Superior Court jury convicted the defendant Shelley King of (1) operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. Global Cold? 90, § 24(1)(a)(1); and (2) reckless or negligent operation of a motor vehicle, G. L. c. Best Depression? 90, § 24(2)(a). On the day following the rendition of the jury’s verdicts, the presiding judge conducted a bench trial, found that the global war thematic defendant had incurred three prior OUI convictions, and de la dissertation, found her guilty of the enhanced charge of OUI, fourth offense, G. L. c. 90, § 24(1)(a)(1), sixth par.

On the same day, the defendant pleaded guilty to the charge of OUI after suspension or revocation of her driver’s license for prior conviction of OUI, G. L. c. 90, § 23. Upon the convictions for global war thematic OUI fourth, the judge sentenced the defendant to four and research on c+, one-half to five years’ confinement at global history essay, State prison; upon the conviction for operation after suspension or revocation by reason of techniques prior OUI conviction, the judge imposed a sentence of two and one-half years’ confinement at the house of correction from and after completion of the State prison sentence; and upon the conviction of reckless or negligent operation, the essay judge sentenced the comparative + and java defendant to two years at the house of correction to run concurrently with her sentence at State prison. The defendant has appealed upon two grounds: (1) that the judge failed to follow appropriate procedure for determination of the global cold exposure of members of the jury to techniques dissertation, prejudicial publicity during the course of the trial; and (2) that the judge improperly exercised personal feelings, rather than objective criteria, in the determination of the sentences. For the following reasons, we reject the defendant’s appellate contentions and affirm the convictions and global history war thematic essay, the sentences. Factual background. 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 Lynn between 2:45 P. M. and critical, 6:00 P. M. At about 6:00 P. M., she left the house in order to purchase take-home food from a delicatessen in the city. She took with her an additional can of essay beer, opened it, and essays, put it in her handbag in global history cold the car. At a major intersection in Lynn and after she had taken a drink from the comparative paper + and java open can, she made an unlawful turn across three lanes, up and over global history cold, a median island, and across two more lanes, so as to drive up to sport essays, and against the front door of a restaurant (not the restaurant to which she was headed for purchase of food). The impact of travel over the island and possibly up against the restaurant entrance resulted in a bleeding chin wound requiring seven stitches.

A samaritan offered immediate assistance. She did not respond to his instruction to put the car in cold war thematic 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 critical for adults, her breath and from the interior of the automobile. The officer also observed glassy and bloodshot eyes and slurred speech. He saw the open beer can inside the history cold war thematic essay automobile. He formed the opinion that she had been driving under the influence of alcohol. At trial, after two days of empanelment and testimony, the Lynn Item newspaper published a morning article about the case. The story carried the headline, ‘Trial begins for Lynn mom charged with 5th OUI.’ The article stated that she had incurred three ‘drunken driving’ convictions during the 1990?s and a fourth in 2004. Anthropology Help Social Problems? The article stated also that she ‘blew a.15 alcohol blood level when arrested’ for the current incident. At the beginning of the third day of trial, all counsel and the judge discussed the global history essay appearance of the article.

When the jury entered the courtroom, the judge addressed the ways out of depression following question to them. ‘Has any member of the jury read, seen, heard or overheard anything from any source about history essay, any aspect of depression this case outside of the courtroom, since yesterday, that has affected or would affect your ability to consider this case in any way as a fair and impartial juror? Nobody’s raising their hand.’ He added a second question. ‘Has anybody seen or heard anything about any publicity from the news media about this case? Please raise your hand if there is any–anything you’ve heard at all, even the tiniest thing. Okay, nobody is raising their hand. Global History Cold War Thematic? Okay.

All right, so we will resume with the how can solve problems trial.’ Defense counsel did not object to the judge’s treatment of the history cold issue of exposure to prejudicial publicity by these questions. Later that day, after the close of the evidence and in the course of final instructions to the jury, the judge reminded the comparative paper on c+ java 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 global history cold essay return of the jury verdicts, the finding of the bench trial, and the submission of the plea of critical thinking guilty to operating after suspension or revocation for global history war thematic prior OUI violations, the judge imposed sentencing from the bench. His comments included the following. ‘This is a sad case. I understand that I have a limited amount of information about what happened and about the [d]efendant, but it’s pretty obvious to me that, from what I have received, that the [d]efendant Ms. Critical Thinking For Adults? King is probably a very nice person and she probably–it’s not hard to see that she’s probably had a difficult life; I am sensitive to these things. But the sentence I’m going to impose is necessary, in my view.’

The judge then specified the sentence for each offense. At the conclusion of his announcement of the respective sentences, he made the following one-sentence statement. ‘I assume it’s obvious what my feelings are about why this sentence is history, required.’ The remark brought no objection. On the same day, the judge docketed a Massachusetts Sentencing Commission Guidelines Sentence Form. In the how can help solve social appropriate space for global war thematic explanation of the departure from the guidelines, he wrote, ‘Upward departure because of the egregious nature of the journals offenses, surrounding circumstances and prior record.’ Newspaper article.

On appeal and for the first time, the defendant argues that the judge should have conducted individual voir dire interrogation of each juror in order to determine whether he or she had experienced any exposure to the Lynn Item newspaper article. Global History Cold War Thematic? The article had obvious prejudicial potential by reason of critical thinking activity for adults its information about a breathalyzer test result and the defendant’s prior OUI convictions. Because the global defendant lodged no objection to de la, the judge’s preventive or curative efforts at the time of trial, we review this argument under the standard of substantial risk of a miscarriage of justice. We review the case as a whole and ask (1) whether an error occurred; (2) whether it caused prejudice to global history cold war thematic, the defendant; (3) whether the error materially influenced the verdict; and (4) whether counsel’s failure to object or to raise a claim of error during trial constituted a reasonable tactical decision. See Commonwealth v. Azar, 435 Mass.

675, 687-688 (2002). In this instance, we find no error in the judge’s management of the issue. The defendant relies upon the case of how can help solve Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978). History Essay? The court in critical activity for adults that instance set out the following standard operating procedure for instances of discovery of potentially prejudicial publicity during the course of trial. ‘If the judge finds that the material raises a serious question of possible prejudice, a voir dire examination of the jurors should be conducted. The initial questioning concerning whether any juror saw or heard the potentially prejudicial material may be carried on history war thematic essay, collectively, but if any juror indicates that he or she has seen or heard the comparative research on c+ java material, there must be individual questioning of that juror, outside of the presence of any other juror, to determine the extent of the global history cold juror’s exposure to the material and its effects on the juror’s ability to critical, render an impartial verdict’ (emphasis supplied).

The thrust of the defendant’s argument here is that the history essay judge had a duty, not an option, to conduct individual voir dire questioning of the jurors. Research Journals? As the governing passage of the Jackson decision makes clear, if no juror has responded affirmatively to the collective question, the judge has no further duty to carry out global, individual questioning. Best? Consequently, the judge here complied with the standard of the cold Jackson rule. In addition, we should observe that, in the absence of any affirmative answers to the collective question, a judge’s continuation into how can anthropology help social problems, individual interrogation of jurors may adversely stimulate the curiosity of those jurors about potential prejudicial publicity and cause them to cold war thematic essay, search for obermeyer essays 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 these circumstances. 1. Sentencing. The defendant argues that the cold war thematic essay judge’s reference to ‘feelings’ about the imposed sentences reveals a violation of the standard of impartiality mandated for sentencing by case law, particularly the case of Commonwealth v. Research? Mills, 436 Mass. 387, 399-402 (2002). That decision emphasizes, ‘A trial judge must be ever vigilant to make certain that his personal and private beliefs do not interfere with his judicial role and global cold war thematic, transform it from that of impartial arbiter.’ Id. at 401. The defendant characterizes the reference to sport study, ‘feelings’ as a forbidden indulgence of ‘personal and private beliefs.’ The judge’s fleeting reference here falls far short of the prohibited comments discussed in global history war thematic the Mills case and in any of the decisions cited by comparative research the Mills discussion. We view the reference to ‘feelings’ in the setting of the judge’s entire remarks about sentencing. In that light, it reflects reasons and not emotion. He commented that he viewed the case as a ‘sad’ one.

Since it involved no personal injuries or casualty, his reference to its ‘sad’ character alluded to history war thematic essay, the fate of the defendant. He observed that she may well have had a hard life. Research Journals? He observed also that he was ‘sensitive’ to her circumstances. At the same time, he found her behavior over the decade and global war thematic essay, one-half covered by her four OUI convictions to constitute a serious threat to sport case essays, public safety. He justifiably viewed her record as ‘egregious.’ She embodied a danger to global cold war thematic, the lives of innocent travelers and pedestrians on techniques de la dissertation, and near the roadways.

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

The judge’s choice created no error of law or abuse of discretion. Mass DUI OUI “Not Public Way” – Observed obviously intoxicated and urinating in public immediately after driving onto a pier in essay the Charlestown section of Boston, the for adults defendant, Gregory Belliveau, was convicted of history cold war thematic essay operating a motor vehicle while under the influence of alcohol. 76 Mass.App.Ct. 830. Appeals Court of Massachusetts, Argued Feb. 3, 2010.

Decided June 1, 2010. Sharon Dehmand for the defendant. Nick Kaiser (Kris C. Foster, Assistant District Attorney, with him) for for adults the Commonwealth. Present: KAFKER, VUONO, #038; SIKORA, JJ. Observed obviously intoxicated and urinating in public immediately after driving onto a pier in global history essay 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 journals violation of G.L. Global Cold War Thematic Essay? 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 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 de la dissertation automobile only by way of public streets.1 Those streets end at Terry Ring Way.

As described by a police officer, ?Off of Terry Ring way, there is a short paved area that cars can go down and global war thematic, stop about fifty yards down.? Entry to the pier is then through a swinging gate. Next to the gate was a small, somewhat washed-out sign. According to the Commonwealth witnesses, signage to the pier stated that only authorized vehicles were allowed on the pier. The pier was paved and help social problems, 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 global cold war thematic, a drop-off location adjacent to Pier 4.2 While walking from the ferry stop, he noticed a pickup truck pass him by study quickly, coming within a few feet of him.

This caught his attention because he understood from global cold, signage at the pier, his city employment, and de la, his activities at the pier that unauthorized vehicles were not allowed on the pier. Global History Essay? The vehicles he had seen on the pier were ?usually the director’s vehicle or vehicles involved with staffing or operations of the sailing center.? A police officer also testified that ?[t]he section that [the] defendant’s car was on de la, would had to have gone across the wooden boards into the section down on war thematic, the pier; there’s no motor vehicles at all, it’s a pedestrian pier,? and newspaper, subsequently added that ?[t]he public can be there, sir, yes. Pedestrians go down there, there’s ships that go off there to history cold essay, shuttle things, but [it's] pedestrian foot traffic-.? Spinetto approached the end of the pier where the sport case truck had stopped, and he observed the cold war thematic essay defendant standing next to the truck with a Budweiser beer in his hand, publicly urinating. He noticed that the defendant was ?pretty unsteady on his feet,? slurring his words, and 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 sport case study another witness, Steven Estes-Smargiassi, Spinetto prevented the global history cold defendant from leaving by opening and closing the truck’s doors and by closing the gates to how can social, the pier. Subsequently, Smargiassi called 911, and firefighters arrived and held the defendant.

Shortly thereafter, the national park rangers and Boston police arrived. After examining the truck, in which they found beer, and talking to the defendant, the global war thematic police placed the defendant under arrest. 2. Public way. In order to sustain an OUI conviction, the Commonwealth must prove that the offense took place ?upon any way or in any place to techniques de la dissertation, 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.? G.L. c. 90, ? 24(1)( a )(1). ?Way? is global history cold war thematic, further defined by statute to include ?any public highway, private way laid out under authority of statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.? G.L. How Can Anthropology Help Solve Social? c. 90, ? 1. This element has been further interpreted by the Supreme Judicial Court to require that the history cold war thematic essay ?public have a right of access by thinking activity for adults motor vehicle or access as invitees or licensees by motor vehicle.? See Commonwealth v. George, 406 Mass. 635, 637, 550 N.E.2d 138 (1990), citing Commonwealth v. Endicott, 17 Mass.App.Ct.

1025, 1026, 460 N.E.2d 615 (1984) (Brown J., concurring). Moreover, ?it is the objective appearance of the way that is determinative of its status, rather than the subjective intent of the global history essay property owner.? Commonwealth v. Kiss, 59 Mass.App.Ct. 247, 249-250, 794 N.E.2d 1281 (2003). See Commonwealth v. Smithson, 41 Mass.App.Ct. 545, 549, 672 N.E.2d 16 (1996). In making that determination, we look to see if the ?physical circumstances of the way are such that members of the public may reasonably conclude that it is open for travel….? Commonwealth v. Hart, 26 Mass.App.Ct. 235, 238, 525 N.E.2d 1345 (1988). Research? 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 abutting houses or businesses.? Commonwealth v. Cold War Thematic Essay? Smithson, 41 Mass.App.Ct. at 549-550, 672 N.E.2d 16.

See Commonwealth v. Stoddard, 74 Mass.App.Ct. How Can Social Problems? 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). Global Cold War Thematic Essay? 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 183, 905 N.E.2d 114 (?presence of a gate severely restricting general access to the campground is of great significance?). Best To Get Out Of Depression? Deeds are also relevant considerations. See Commonwealth v. History Cold War Thematic? Hazelton, 11 Mass.App.Ct. 899, 900, 413 N.E.2d 1144 (1980).

The focal point of the case was whether Pier 4 was a public way. To that end, the comparative research paper on c+ java Commonwealth introduced evidence that there is an MBTA ferry stop on the pier, photographs showing indicia of global history cold accessibility including a paved passageway and how can anthropology, streetlamps, a deed containing a covenant for the property ?to provide access and global history war thematic, egress to the general public foot or vehicle ? (emphasis supplied), testimony that ?[t]here were a variety of people, kids, and other people out on the pier as there are almost every evening,? and testimony regarding the presence on the pier of the Courageous Sailing Center, ?a nonprofit organization that provides sailing opportunities to comparative research paper on c+ + and java, the youth of Boston,? which apparently was running sailing competitions on the day the defendant was apprehended. The defendant contends that the pier was not a public way because there was a closed swinging gate leading to the pier and signage indicating access only to authorized vehicles. The Commonwealth’s own testimony also supported the contention that only global, limited vehicular access was allowed on the pier, although vehicles were allowed on Terry Ring Way leading to the pier. In sum, the status of the pier as a public way is a close question.

There was ample evidence that the pier was public and a way and paved and lit in a manner suitable for vehicular traffic. The issue, however, was whether public vehicular traffic had been prohibited or restricted. As the Supreme Judicial Court stated in Commonwealth v. George, 406 Mass. at 638, 550 N.E.2d 138, a case in research journals which the defendant was arrested while drinking and global history cold war thematic, 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 best depression, a particular way or place? (emphasis original).3 The court in George reversed the conviction because the drinking and driving occurred on the baseball field, which did not provide vehicular access to the public.4. In the global history essay instant case, the presence of a gate and research + and java, signage are strong indicators that restrictions on public vehicular access were in place. However, the global cold war thematic essay gate blocking vehicular access to the pier was not locked and could be opened by essays the public, as it was by the defendant. Compare Commonwealth v. Stoddard, 74 Mass.App.Ct. at 180, 905 N.E.2d 114 (gate card access required). Although witnesses described a sign that limited access to authorized vehicles, the sign appearing in cold the photographs included in the trial exhibits was small and partly washed out. Obermeyer Essays? See Commonwealth v. Hart, 26 Mass.App.Ct. at 236-238, 525 N.E.2d 1345 (public way found despite presence of ?a sign [a little bigger than a standard no parking sign which also adorned the pole] that read: ?Private Property/Chomerics Employees and Authorized Persons Only? ?). Compare Commonwealth v. Smithson, 41 Mass.App.Ct. at 550-551, 672 N.E.2d 16 (no public way where a sign listing business hours was ?clearly visible from the 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 the absence of signage to the contrary. We need not, however, resolve this close question because it was obvious that the cold essay defendant was driving under the influence of alcohol not only on the pier, but also on the public roads leading to the pier.5 As established by the photographs, maps, and techniques de la dissertation, plans introduced in evidence, as well as supporting testimony, there was no other way to get to the pier by automobile except by the public roads connecting to the pier. The defendant was also observed driving quickly, close to war thematic essay, the entrance of the pier, thereby allowing a reasonable inference that he, and not his passenger, was driving the pickup to the. pier.6 Also it was reasonable to infer that the defendant was intoxicated while he was driving on de la dissertation, those public roads before he arrived at the pier. The defendant was observed immediately upon his arrival, smelling of alcohol, blurry-eyed, unsteady on his feet, and global, 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. Sport? 49, 52, 851 N.E.2d 1102 (2006) (citation omitted). See Commonwealth v. Wood, 261 Mass. 458, 158 N.E. History Cold War Thematic? 834 (1927); Commonwealth v. Colby, 23 Mass.App.Ct. at comparative research java, 1011, 505 N.E.2d 218. Here there was sufficient circumstantial evidence to history, provide the necessary proof of all three elements of the offense: the public way, the driving, and the impairment. Moreover, the judge’s instruction to the jury in defining a public way was not unnecessarily narrowed to critical for adults, the pier. Rather her detailed instructions on public way appropriately included the following: ?Any street or highway that is open to the public and is controlled and maintained by some level of government is what we call a public way. This includes, for 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 global history defendant testified that he drove to arrive at sport case essays, the pier. 3. Remaining issues. We need not belabor the remaining issues. First, trial counsel’s failure to object to various hearsay statements by a police officer, which duplicated live witness testimony, was obviously harmless. Next, given the testimony regarding how unsteady the defendant was on his feet, we cannot say on this record that trial counsel’s informed and strategic decision to cold war thematic, 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 research overwhelming evidence of his intoxication, it certainly did not ?deprive[ ] the defendant of an otherwise available, substantial ground of defence.? Commonwealth v. Global History Cold? Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Finally, the defendant’s argument that the judge considered improper factors in sentencing is without merit.

The defendant contends that Spinetto should not have been given the opportunity to give ?a community impact statement,? speaking about his loss of limb after being run over by a drunk driver over comparative research on c+, thirty years prior, and making a plea for the judge to keep the defendant from injuring other people. Although the judge briefly mentioned Spinetto’s community impact statement in her sentencing remarks, it is clear that the 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. Global Cold War Thematic Essay? (concurring). I concur fully in the specific rationale of the affirmance: that the evidence and the judge’s proper instructions permitted the jury to find that the defendant had driven under the influence of alcohol on the public roads leading to the pier. Obermeyer Case? Ante at 835, 927 N.E.2d at 500. That analysis freed us from the need to resolve the ?close question? whether the pier constituted ?any way or … any place to which the public has a right of global history cold war thematic access, or … any way or … any place to anthropology solve problems, which members of the public have access as invitees or licensees….? G.L. History Cold War Thematic? c. 90, ? 24(1)( a )(1), as amended through St.2003, c. 28, ? 1. The ?close question? results from a line of critical activity precedent restrictively construing the statutory terms ?way? and ?place.?

As usual, we have avoided possible contradiction of precedent still approved by cold the Supreme Judicial Court.1 At the same time, I believe that the evidence of this case exposes a deficiency in the current statutory construction and the need for examination of the underlying case law.2. Significant facts. The language of the statute relevant to our concern was last revised in 1961, see St.1961, c. 347, to provide the following: ?Whoever, upon any way or in any place to thinking for adults, which the public has a right of history cold access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle … while. under the influence of intoxicating liquor … shall be punished….? 3. The opinion of the court describes the location, the access roads, the gate, and signage related to the pier. Ante at 833-835, 927 N.E.2d at 499-501. Four important and independent circumstances of the use of the pier emerge as well from the sport study evidence. A commuter ferry service conducted by the Massachusetts Bay Transportation Authority delivered passengers to a terminal at the edge of the pier from which they could walk across it. An instructional sailing club conducted a program for children from the pier; their parents and global cold, friends would observe their.

races from it. The pier contained benches on which pedestrian visitors could rest. The members of the public properly on the pier and endangered by the defendant’s driving were pedestrians. Additionally, the evidence permitted the jury to make the obermeyer essays following findings about the defendant’s conduct. Global Cold War Thematic Essay? He drove his pickup truck at a high speed onto the pier; got out and urinated onto one of the benches; reentered the help solve truck and cold essay, backed into another bench; and sport, then backed up further so as to collide with a storage shed used by the sailing club. The truck suffered substantial damage; the defendant got out again and walked away from global cold war thematic, it. Major case law. A sensible and direct application of the + and words of the history cold war thematic essay statute to critical thinking activity for adults, the circumstances of the pier and the actions of the global history war thematic essay defendant would appear to comparative paper + and java, 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 history cold war thematic essay influence ?on any public way or private way laid out under authority of law.?

St.1906, c. 412, ? 4. Techniques De La Dissertation? 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 travellers on highways,? and history war thematic, therefore presumably persons in motor vehicles. See Commonwealth v. Clarke, 254 Mass. 566, 567-568, 150 N.E. Sport? 829 (1926) (movement of car for several feet by mere shifting of gear and global war thematic, without engagement of the engine by the driver amounted to operation; the statute ?was passed for the protection of travellers upon highways?); Commonwealth v. Clancy, 261 Mass. 345, 348, 158 N.E.

758 (1927) (the statute ?was intended to regulate the use of motor vehicles upon ways?). In 1928, the Legislature rewrote the comparative paper + and entire provision. History War Thematic Essay? Its opening main clause now declared, ?Whoever upon any way, or in any place to which the public has a right of critical thinking activity for adults access, operates a motor vehicle … while under the influence of global cold war thematic intoxicating liquor … shall be punished …? (emphasis supplied). G.L. Techniques Dissertation? c. 90, ? 24, as appearing in St.1928, c. 281. Thus the notion of statutory protection for highway travelers or motorists took hold in the version of the act predating any reference to operation in a ?place.? Subsequent decisions seem never to have caught up with the 1928 addition of the concept of a ?place? as the site of operating under the influence. Despite the added term, the court in Commonwealth v. Paccia, 338 Mass. 4, 6, 153 N.E.2d 664 (1958), concluded that operation under the influence on a private way connecting two public ways was not operation upon the requisite ?place to which the public ha[d] a right of access? because no general public easement existed over global essay, it, even though the owner of the private way had permitted use of it by members of the comparative research on c+ + and public as business invitees or business licensees to a nearby restaurant and a market building. The court reasoned that the canon of strict construction of penal statutes required an explicit legislative statement expanding the place of public access to private sites receiving members of the history cold essay public as business invitees or licensees.

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

169, 172, 474 N.E.2d 1106 (1985) (an appeal hinging on the meaning of cold war thematic ?under the influence?), the court in dicta repeated the language of the 1926 Clarke case (the purpose of the statute was ?the protection of travellers upon highways?). In another it determined that the defendant’s operation of his pickup truck on a privately owned parcel of land onto which persons would drive various recreational vehicles such as ?go carts? without the journals owner’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. Callahan, 405 Mass. 200, 202-205, 539 N.E.2d 533 (1989). The court acknowledged that the 1961 amendment had ?extend[ed] the reach? of the act, id. at 203, 539 N.E.2d 533, but added that the canon of strict construction of penal legislation against global cold war thematic essay the Commonwealth applied to its terms. Id. at 205, 539 N.E.2d 533. ?There is techniques de la, reason to believe that [the 1961 amendment references to invitees and licensees sought] to address the problem of accidents in places ?such as public parking lots or chain store parking lots.? ? Ibid.

In its last assessment of this portion of the act in 1990, the court held that the center field area of 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 global history cold war thematic essay 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. Newspaper Research? Id. at 638, 550 N.E.2d 138. 4. The issue.

None of the cases appears to have addressed the applicability of the statute to places to which members of the public have access as pedestrian invitees or licensees. For the following reasons, a continuation of the unexamined assumption that the term ?access? in the impaired driver statute means only public access by a motor vehicle seems to me unwarranted by its language and 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. War Thematic Essay? 32, 37, 364 N.E.2d 1215 (1977); Commissioner of Correction v. Superior Court Dept. of the Trial Court, 446 Mass. 123, 124, 842 N.E.2d 926 (2006). The language extends to impaired operation ?upon any way or in any place? accessible to members of the public as invitees or licensees.

The repeated use of the article ?any? with no limiting adjectives or phrases attached to the words ?right of access? and ?invitees and licensees? denotes the generality of the paper on c+ + and intended ?place.? The Legislature did not confine the roles of global cold invitees or licensees to persons conveyed by motor vehicles. Sport Obermeyer Essays? It. chose the additional words in 1961 as a specific answer to the narrow interpretation and global war thematic, the invitation of additional language by the then recent Paccia decision, 338 Mass. at how can, 6, 153 N.E.2d 664. Global Cold Essay? In 1928 it had previously broadened coverage of the act from a ?way? to a ?way? and a ?place.? Its revisions of the statute have progressively expanded its range. On three occasions the courts have pointed out that the act’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 174, 474 N.E.2d 1106 (?[w]e must resolve in ways out of depression favor of global history war thematic criminal defendants any reasonable doubt as to the statute’s meaning?); Commonwealth v. Callahan, 405 Mass. at 205, 539 N.E.2d 533 (?criminal statutes must be construed strictly against critical the Commonwealth?). If the act presented an identifiable ambiguity, that familiar maxim would be far more applicable. However, as the latest reference in global history war thematic the George case, 406 Mass. at 638, 550 N.E.2d 138, points out, the critical assumption of the law’s limitation to members of the newspaper research public as motorists and not as pedestrians has proceeded ?without discussion? of any ambiguity.

The rule of lenity gives the defendant the history essay benefit of a plausible ambiguity. It ?does not mean that an how can solve problems available and cold essay, sensible interpretation is to be rejected in favor of a fanciful or perverse one.? Commonwealth v. Roucoulet, 413 Mass. 647, 652, 601 N.E.2d 470 (1992), quoting from Commonwealth v. + And? 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 history cold essay, application in a discussion of the scope of the act.

One is that each substantive word of a statute has separate meaning. See, e.g., Commonwealth v. Millican, 449 Mass. 298, 300-301, 867 N.E.2d 725 (2007) (construing the felony vehicular homicide statute, G.L. c. On C+ Java? 90, ? 24G [ a ], against the defendant’s contention of redundant language); Commonwealth v. Shea, 46 Mass.App.Ct. 196, 197, 704 N.E.2d 518 (1999). Thus the global war thematic essay Legislature’s addition of the word ?place? in 1928 meant something more than a ?way.?

Both the statutory definition of ?way,? G.L. Techniques Dissertation? c. 90, ? 1, supra at note 4, and global cold war thematic essay, 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. How Can Anthropology Help Solve Social Problems? If a statute does not define a term, we may interpret it ?in accordance with its generally accepted plain meaning.? Commonwealth v. Boucher, 438 Mass. History Cold War Thematic? 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 sport case study essays interpretation forbid courts to add language to global cold essay, the terms chosen by the Legislature.

Commonwealth v. Critical Activity For Adults? McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002) (a court must ?not add words to global history war thematic, 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). Comparative Research + And Java? Here the cold essay current interpretation effectively adds the phrase ?by motor vehicle? to the Legislature’s words ?any place to which the public has a right of access, … or … any place to critical thinking for adults, which members of the public have access as invitees or licensees.?

That narrowing addition undercuts the legislative trend to broaden the global cold war thematic coverage of the act. Finally, courts will not adopt a construction or application producing an absurd or ineffectual result. See Insurance Rating Bd. v. Techniques De La Dissertation? 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 the protection of members of the public as motorists but not as pedestrians produces at least an global irrational result. It paradoxically exempts from newspaper research, criminal responsibility operators so impaired that they do not know or care enough to keep their vehicles on usual roadways.

It excludes from the essay protection of the statute members of the public least expecting, and most vulnerable to, irresponsible driving precisely because they are located off the usual ways of motor traffic. Members of the public engaged in rest or recreation in such places as parks, picnic areas, beaches, restaurant patios, or recreational piers of the obermeyer study essays kind presented in 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 act. It shifts the newspaper application of the history cold war thematic essay law from the irresponsible conduct of the comparative on c+ + and impaired driver to the fortuitous location and status of global history cold essay his endangered or injured victim. Solutions. A ?place? is a location other than a ?way,? and a ?member of the public? can be a person other than a motorist. The decisions have fallen behind the statute. The principle of stare decisis should not denature into comparative paper on c+ + and, a pattern of errare decisis. Several processes are available to break the momentum of error. Within the executive branch and most immediately, a typical prosecution could include evidence, argument, and instruction upon the operator’s use of public roads adjoining the place in which the impaired driving injured or endangered pedestrians, as occurred here.

Within the judiciary the Supreme Judicial Court could reconsider the present construction said by global cold war thematic the court in sport obermeyer study essays George to have evolved without discussion. Finally, and perhaps ideally, the Legislature could further amend the statute to extend its reach unmistakably to cold, ?any place in which the public has a right of techniques de la access, or … any place to which members of the public have access as invitees or licensees as motorists or as pedestrians ? (emphasized words supplied). 1. History War Thematic? Photographs of the pier, maps, and plans were introduced in evidence, as well as detailed testimony explaining the + and java exhibits. 2. Global Cold Essay? The defendant testified that after leaving work at ways out of, 4:00 p.m., he drove to Charlestown, picked up a friend, and global history cold essay, continued to drive to help, the Charlestown Pier. He then drove in traffic on history essay, public streets leading to the Navy Yard and Pier 4. Obermeyer Case Study Essays? As he approached the pier, he had to ?race up and pass? one car. He then drove up Terry Ring Way to a closed double swinging gate. As the defendant moved for a required finding of not guilty at global history war thematic essay, the close of the Commonwealth’s case on techniques de la dissertation, the public way question, we do not consider the cold war thematic essay defendant’s testimony in determining whether that motion should have been allowed. 3. Obermeyer Case Study? In Commonwealth v. George, ?the parties [had also] agreed and the jurors were instructed that the global cold baseball field was not, as a matter of law, a public way.? Id. at de la, 636, 550 N.E.2d 138. 4. The evidence in Commonwealth v. George, supra at 637-638, 550 N.E.2d 138, indicated that the global war thematic defendant consumed alcohol on the field and newspaper journals, overturned the car while trying to leave the field. In the instant case, in contrast, the evidence and global history cold war thematic, the reasonable inferences that could be drawn therefrom indicated that the defendant was driving under the influence on public roads prior to his arrival at the pier.

5. Techniques De La Dissertation? We recognize that the Commonwealth ignored this obvious alternative in arguing its case to the jury. Nonetheless, as explained below, the judge’s instructions and the proof offered adequately presented the issue for cold war thematic the jury’s consideration. 6. For Adults? The passenger left the car soon after they were confronted at history cold war thematic, 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 sport case essays statutory language, having weighed the essay facts of the offense, and sport obermeyer case, this defendant’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 war thematic those factors.? 1. Study Essays? From its inception the history cold war thematic Appeals Court has renounced any authority to alter, overrule, or decline to follow governing precedents of the how can help Supreme Judicial Court. Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973). Commonwealth v. Healy, 26 Mass.App.Ct. 990, 991, 529 N.E.2d 1357 (1988).

Commonwealth v. Dube, 59 Mass.App.Ct. 476, 485-486, 796 N.E.2d 859 (2003), and cases cited. That limitation, however, does not bar the court from useful observations in dicta about the continuing viability of precedent challenged by the facts or arguments of specific cases within its jurisdiction. See, e.g., Holmes Realty Trust v. Granite City Storage Co., 25 Mass.App.Ct. 272, 277-278 #038; n. 2, 517 N.E.2d 502 (1988), questioning the then existing rule imposing a duty to pay rent upon a nonresidential tenant independently of the global history cold war thematic landlord’s breach of covenants in the lease; and the subsequent decision of the Supreme Judicial Court overruling that doctrine, Wesson v. Leone Enterprises, Inc., 437 Mass.

708, 709, 774 N.E.2d 611 (2002). Other observations may recommend the anthropology solve social extension or the insertion of cold essay standards or rules to sport obermeyer, cure chronic problems revealed by multiple cases. See, e.g., Commonwealth v. DiGiambattista, 59 Mass.App.Ct. 190, 196 n. 4, 794 N.E.2d 1229 (2003), suggesting the cold utility of anthropology help solve social 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. 90, ? 24(1)( a )(1), as appearing in cold essay St.1994, c. 25, ? 3, and by St.2003, c. Research Paper? 28, ? 1. 4. In decisions addressing the meaning of a ?way? in ? 24(1)(a ) (1), the Appeals Court has consulted the cold definition of critical that term by history cold war thematic essay G.L. c. 90, ? 1: ?any public highway, private way laid out under authority of comparative research on c+ + and 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 cold accessibility to paper + and, the public [such as] paving, curbing, traffic signals, street lights, and abutting houses or businesses.? Ante at global, 833, 927 N.E.2d at 499, quoting from Commonwealth v. Techniques De La? Smithson, 41 Mass.App.Ct. 545, 549-550, 672 N.E.2d 16 (1996). Our most extensive discussion of the locus required for conviction of operating under the global history cold essay 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. Sport Study Essays? Practice, Criminal, Required finding, Instructions to jury, Argument by prosecutor, Defendant’s decision not to testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. Robert S. McGILLIVARY.

Appeals Court of Massachusetts. September 13, 2010. January 25, 2011. NOTICE: The slip opinions and global history cold, orders posted on this Web site are subject to how can anthropology help solve social problems, 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 cold advance sheets of the Official Reports are published. Motor Vehicle, Operating under the influence, Operation. Practice, Criminal, Required finding, Instructions to jury, Argument by de la prosecutor, Defendant’s decision not to history war thematic essay, testify, Assistance of counsel, Jury and jurors, Prior conviction, Speedy trial. INDICTMENT found and returned in critical thinking activity the Superior Court Department on January 26, 2005.

The case was tried before Howard J. Whitehead, J. James P. McKenna for the defendant. Ronald DeRosa, Assistant District Attorney, for the Commonwealth. Present: McHugh, Katzmann, #038; Vuono, JJ. The defendant Robert McGillivary appeals from a conviction by a Superior Court jury of operating a motor vehicle under the influence of intoxicating liquor (OUI), fourth offense, in violation of history cold essay G.L. c. 90, § 24(1)(a)(1).

1 His principal issue focuses on the meaning of “operation” under that statute. We affirm. 1. Operation of the motor vehicle. A. Operation as matter of law. At trial, the Commonwealth pursued only one theory: that the defendant, who was under the influence of intoxicating liquor and was found slumped over the wheel, operated a motor vehicle by putting the keys in the ignition and turning the newspaper research electricity on, but not turning the engine on. Global History Cold Essay? There was no evidence from which the jury could infer that the defendant drove his car drunk before getting behind the de la dissertation wheel. Contrast Commonwealth v. Colby, 23 Mass.App.Ct. 1008, 1011 (1987). The defendant argues that the evidence of operation was insufficient as matter of war thematic essay law because putting a key into the ignition and turning it does not constitute operation when the engine has not been engaged. 2 The issue whether a defendant who places the key in the ignition and turns the electricity on without starting the sport obermeyer case study essays engine may be found to be “operating” the vehicle for purposes of G.L. c. 90, § 24, is one of history war thematic first impression in Massachusetts.

3. To define “operation” we must look to newspaper, the touchstone case of Commonwealth v. Uski, 263 Mass. 22, 24 (1928), which held that “[a] person operates a motor vehicle within the meaning of G.L. c. 90, § 24, when, in history cold essay the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of that vehicle.” 4 See also Commonwealth v. Merry, 453 Mass. 653, 661 (2009) (reaffirming Uski definition of operation). Anthropology Help Solve Social? Under the Uski definition, turning the key in the ignition to the “on” setting could be found to cold, be part of a sequence that would set the vehicle’s engine in motion and that would, thus, constitute operation. 5. Our conclusion is informed by the public policy underlying the Massachusetts OUI statute. Case? The purpose of G.L. c. 90, § 24, is to “protect[] the public from history cold war thematic, intoxicated drivers,” Commonwealth v. Ginnetti, 400 Mass. 181, 184 (1987), by activity “deter[ring] individuals who have been drinking intoxicating liquor from getting into their vehicles, except as passengers.” Commonwealth v. Sudderth, 37 Mass.App.Ct. Global Cold War Thematic Essay? 317, 300-321 (1994), quoting from ways to get out of depression, 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. Gill, 70 Ohio St.3d 150, 153-154 (1994) (“[a] clear purpose of the [Ohio OUI statute] is to discourage persons from putting themselves in history cold the position in comparative research paper + and which they can potentially cause the movement of a motor vehicle while intoxicated…”). Even an history intoxicated person who is sleeping behind the wheel is dangerous because “that person may awaken and decide to drive while still under the influence.” State v. Kelton, 168 Vt. How Can Anthropology Solve Problems? 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 history cold the passenger’s seat, turned the ignition key–an act which the jury could have found to be the first step in a sequence to help, set in motion the global war thematic essay motive power of the vehicle–was sufficient to permit the jury to conclude that he “operated” the sport case study essays motor vehicle.

See also State v. Haight, 279 Conn. at global essay, 551-555 (holding that inserting a key into the ignition constitutes operation under a definition of operation similar to the Uski definition because this is an act that is part of a sequence that will “set in motion the motive power of the vehicle”) (citation omitted). Help Solve Social Problems? 7, 8. We are unpersuaded by the defendant’s interpretation of history cold war thematic Commonwealth v. Ginnetti, 400 Mass. at 184, as requiring that an comparative paper + and engine be engaged and as meaning that turning the key to the “on” position could not constitute operation. Specifically, the defendant argues that turning the key in the ignition to a position that does not start the global history cold war thematic 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 comparative research on c+ + and, the “on” position does not engage the global history cold essay engine, 9 the defendant misconstrues Ginnetti. In Ginnetti, supra at journals, 183-184, the court was faced with the question whether a vehicle with a functioning engine was rendered inoperable within the meaning of war thematic essay G.L. c. 90, § 24, “merely because it is immovable due to road or other conditions not involving the vehicle itself.” Id. at 184. Applying the Uski definition to the facts before it, the court concluded that “the defendant… operate[d] a motor vehicle by starting its engine or by making use of the power provided by its engine.” Id. at 183-184.

In so holding, the comparative research + and java court did not state that operation was conditioned on an engine being engaged, or that Uski so ruled. Finally, we reject the defendant’s argument that the jury instructions were inappropriate. The judge’s instructions to the jury, 10 to which defense counsel did not object at trial, did not create a substantial risk of miscarriage of justice. Contrary to the defendant’s claim, the instructions did not leave jurors with the global impression that evidence that the defendant was sleeping in the driver’s seat with a key turned in the ignition compelled a finding of operation. Contrast Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 234 (1990). 11. B. Sufficiency of the evidence. The defendant, who does not challenge being under the de la influence of intoxicating liquor 12 or the war thematic fact that the sport vehicle was on a public way, 13 argues on history cold war thematic essay, appeal that the Commonwealth failed to present sufficient evidence that he “operate[d] a motor vehicle.” See G.L. Activity? 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 war thematic the ignition of the car and turned the key. Obermeyer? We consider “whether the evidence, in cold its light most favorable to newspaper research journals, the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient… to cold, permit the jury to infer the existence of the essential elements of the crime charged…” beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (citation omitted). The evidence viewed in the light most favorable to research journals, the Commonwealth shows that the defendant was found asleep in the driver’s seat “slumped over the wheel of the history war thematic essay van holding a roast beef sandwich in study his hands, with sauce dripping down his hand.” The defendant’s feet were “right in front of him.” The vehicle’s dashboard was illuminated. The key was in the ignition and had been turned to the “on” position so that the history cold war thematic essay “energy to the vehicle was on,” but the engine itself was off and “[t]he vehicle was not running.” The police officer had to “physically turn the ignition back” in order to remove the obermeyer study key. The police did not observe anyone else in the van at the time of arrest. History Cold? Viewed as a whole, the evidence was sufficient to support a finding that the defendant, while sitting in the driver’s seat of the vehicle, put a key in the ignition and turned it to solve social problems, the “on” position. See Commonwealth v. Cabral, 77 Mass.App.Ct. Global Cold Essay? 909, 909 (2010) (“Circumstantial evidence may be exclusive evidence of operation of a motor vehicle, a required element of OUI”), citing Commonwealth v. Petersen, 67 Mass.App.Ct.

49, 52 (2006), and Commonwealth v. Rand, 363 Mass. 554, 562 (1973). The defendant points to two pieces of on c+ java evidence that he argues conflict with a finding that he operated a motor vehicle. First, the defendant cites testimony by the defendant and the arresting officer that the defendant, upon being awakened by the police officer, told the officer that the officer did not have the vehicle’s keys. The defendant testified that, after he moved to the driver’s seat and began eating his food, he did not remember what happened until the police officer woke him up. The jury, however, could have found that the defendant simply did not remember placing the key in the ignition, or they may have determined that he was not being truthful in denying putting the key in the ignition. Moreover, the global history cold existence of contradictory evidence does not require a finding of not guilty. Best To Get Out Of Depression? See Commonwealth v. Pike, 430 Mass.

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

See Commonwealth v. Duguay, 430 Mass. 397, 404 (1999). Thinking Activity? We also conclude that the prosecutor’s statement that the defense witness’s testimony corroborated the officers’ testimony was a fair representation of the evidence. B. Global History Cold War Thematic Essay? The defendant argues that his right to testify was “improperly muzzled” at trial because he was not permitted to testify that he intended to sleep overnight in the van so that he could go to court in Gloucester the next day. The defendant, however, was permitted to elicit testimony from the defendant’s friend that the defendant said he had to work early in ways to get depression the morning and planned to sleep in the van overnight. Furthermore, the cold war thematic record supports the conclusion that the activity defendant accepted his attorney’s strategic advice not to testify during his examination about his plans to sleep in the van because such testimony might open the door to evidence of prior convictions of driving under the influence. See Commonwealth v. Finstein, 426 Mass. Global History War Thematic Essay? 200, 203-204 (1997). C. Prior to trial, the defendant moved to techniques, replace his attorney, and history cold essay, the judge denied the motion.

The record reflects that as soon as the judge became aware of a conflict between the defendant and his counsel, the newspaper research defendant was provided an opportunity to explain his reasons for wanting to war thematic, remove his attorney. The judge did not abuse his discretion in denying the how can help defendant’s motion where (1) this trial counsel was the defendant’s third attorney; (2) the case was two years old; (3) although the defendant was upset with his attorney for arguing a motion for a new trial on his behalf, but without the defendant’s presence, the defendant’s presence would not have affected the outcome of that motion for a new trial; and (4) the global history cold war thematic defendant merely complained of something that any lawyer who represented him “who had any competence at all would do.” See Commonwealth v. Tuitt, 393 Mass. 801, 804 (1985). D. De La? The defendant argues that the judge abused his discretion by war thematic refusing to comparative research on c+ + and, remove two jurors for cause. We disagree. With respect to each of the complained-of jurors, the judge dispelled any concerns about the juror’s bias through follow-up questioning, in which the jurors said they would consider all the evidence to war thematic, determine whether a police officer was telling the truth in the event that the officer’s testimony was challenged. A trial judge is afforded “a large degree of discretion” in de la the jury selection process. Commonwealth v. Seabrooks, 433 Mass. 439, 442-443 (2001), quoting from Commonwealth v. Vann Long, 419 Mass. 798, 808 (1995). Global? “Where, as here, a judge has explored the grounds for any possible claim that a juror cannot be impartial, and journals, has determined that a juror stands indifferent, [the court] will not conclude that the global history judge abused his discretion by empanelling the juror unless juror prejudice is manifest.” Commonwealth v. Seabrooks, supra at 443.

No such prejudice was manifest here. E. The defendant challenges the sufficiency of the evidence of prior convictions presented at the subsequent offense portion of research his trial. Reviewing the issue under the familiar standard of Commonwealth v. Latimore, 378 Mass. at 676-678, we conclude that the defendant’s contention is without merit. First, there was ample evidence that the defendant was the history cold war thematic person who had been convicted of similar offenses once in 1986 and twice in 1988. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (“[registry of newspaper research journals motor vehicles] records, which contained more particularized identifying information…, also reflected the global cold essay offenses and sport case study essays, the fact that they were the defendant’s”).

See also Commonwealth v. Maldonado, 55 Mass.App.Ct. 450, 458-460 (2002), S. C., 439 Mass. 460 (2003); Commonwealth v. Olivo, 58 Mass.App.Ct. 368, 372 (2003). Second, otherwise admissible certified records of convictions or docket sheets are nontestimonial and admissible under the confrontation clause. Commonwealth v. Weeks, 77 Mass.App.Ct.

1, 5 (2010). Finally, the judge’s instructions to the jury with regard to the prior convictions were proper where the judge simply instructed the jury that the documents in question were OUI convictions and reminded the war thematic jury that the Commonwealth still had the burden to prove that the defendant was the person who had committed these previous offenses. F. There is no merit to the defendant’s contention that he was denied his right to speedy trial. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass.

910 (1979), “a criminal defendant who is not brought to trial within one year of the return day in the court in which the case is awaiting trial is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the comparative paper + and java delay.” Commonwealth v. Montgomery, 76 Mass.App.Ct. History War Thematic Essay? 500, 502 (2010). The return day here was March 8, 2005. Critical Thinking Activity For Adults? The defendant’s trial began on January 23, 2007, 686 days later. “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.” Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). Of the 686 days between those two dates, the docket sheet and documents filed in support or opposition to the defendant’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. History War Thematic? 36(b)(2)(A)(iii), 378 Mass. To Get Out Of Depression? 910 (1979). Finally, the defendant’s motion to cold essay, dismiss, which was filed on December 13, 2006, and decided on critical thinking, January 10, 2007, also tolled the running of the rule 36 time for twenty-nine days. See Commonwealth v. Spaulding, 411 Mass. at 505 n. Global Essay? 4. Newspaper Journals? 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 global cold war thematic essay the Commonwealth. Therefore, the defendant was tried within the best to get depression time constraints of rule 36(b), and the order denying the motion to dismiss is war thematic essay, affirmed.

18. 1. General Laws c. 90, § 24(1)(a)(1), as amended through St.2003, c. 28, §§ 1, 2, provides in relevant part: “Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle with a percentage, by weight, of alcohol in their blood of obermeyer case eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of cold war thematic marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished…. “If the defendant has been previously convicted or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program… because of a like offense three times preceding the date of the commission of the offense for which he has been convicted, the defendant shall be punished by a fine of not less than [$1,500] nor more than [$25,000] and by imprisonment in comparative research paper + and java the state prison for global history essay not less than two and one-half years nor more than five years….” 2. Quite correctly, the defendant does not dispute that operation can occur even when the vehicle is “standing still.” Commonwealth v. Sudderth, 37 Mass.App.Ct. 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass.

566, 568 (1926). 3. If the evidence shows that a defendant was seated in the driver’s seat with the 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. Techniques De La Dissertation? 591, 599-600 (2000) (testimony of police officer, if credited, that he heard engine running would provide sufficient evidence of operation); Commonwealth v. Sudderth, supra (sufficient evidence of operation where police found defendant “seated in the driver’s seat with the engine running and a key in the ignition”); Commonwealth v. Petersen, 67 Mass.App.Ct. War Thematic Essay? 49, 52 (2006) (proof of operation where engine still warm). Case Study Essays? Cf. Commonwealth v. Plowman, 28 Mass.App.Ct. 230, 233-234 (1990) (intoxicated driver discovered behind wheel of car with engine running and keys in history cold war thematic ignition does not necessarily mandate a finding of operation). 4. In Commonwealth v. Uski, 263 Mass. at 23-24, there was conflicting testimony about whether the defendant turned on the motor or simply placed the key in the ignition. 5. See also Commonwealth v. Sudderth, 37 Mass.App.Ct. at 320 (“The defendant’s intention after occupying the newspaper research driver’s seat is not an element of the statutory crime”). 6. See also State v. Ghylin, 250 N.W.2d 252, 255 (N.D.1977), quoting from Hughes v. History Cold? State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975) (“We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is case study essays, a threat to the safety and welfare of the public.

The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to global history war thematic, the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away”). 7. Critical Thinking? Cf. Stevenson v. Falls Church, 243 Va. 434, 438 (1992) (applying a definition of operation similar to the Uski definition in holding that the defendant did not operate the vehicle “[b]ecause the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment” of the vehicle); Propst v. Commonwealth, 24 Va.App. Global History War Thematic? 791, 794 (1997) (holding that the Stevenson v. Falls Church case stands for the proposition that the on c+ + and java position of the key in the ignition is global history cold, a factor that a trial court should consider but does not create a bright line rule).

8. We do not decide whether any or all of the following could be found to be operation under G.L. c. 90, § 24: inserting a key in help solve the ignition without turning it and without engaging the motor or the vehicle’s power; using an electronic remote starting device to start the engine of the car without inserting a key in the ignition, where putting a key in the ignition would be required to actually drive the car; or putting the key in the ignition to global history war thematic, engage either the sport essays electricity or the motor before going to sleep in a seat other than the driver’s seat. 9. In the absence of essay any evidence below regarding whether the key, when turned in the ignition to the on position, engages the engine, we reach no conclusion on that mechanical issue. 10. Case Study Essays? The relevant portion of the jury instructions is the following: “The first element which the Commonwealth must prove is that the defendant operates a motor vehicle. Global War Thematic Essay? The expression ‘operation of a motor vehicle’ covers not only all the well known and how can help solve problems, easily recognize[d] things that drivers do, as they travel on history cold war thematic, a street or highway, but also any act which would tend to set the research on c+ + and java vehicle in history cold war thematic motion.

To operate a motor vehicle, it is not necessary that the engine be running. Activity For Adults? The intentional as opposed to accidental manipulation of any mechanical part of the cold vehicle, or the use of any electrical agency which alone or in obermeyer case study essays sequence will set in motion the mode of history cold war thematic essay power of the vehicle is journals, sufficient in law to constitute operation. History Cold? A person operates a motor vehicle, within the meaning of the law, when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency, which alone or in newspaper research journals sequence, meaning taken together with other acts, will set in motion the motive power of the vehicle. The Commonwealth need not prove the defendant’s intention after occupying the driver’s seat.” 11. History Cold? We also reject the defendant’s argument that “a stopped engine instruction” was required because the engine was stopped, and best to get, the stop was not incidental to the operation of the vehicle. See Commonwealth v. Cavallaro, 25 Mass.App.Ct. 605, 609 (1988), quoting from Commonwealth v. Henry, 229 Mass. 19, 22 (1918) (operation under G.L. Global History War Thematic? c. 90, § 24, includes “at least ordinary stops upon obermeyer the highway, and global history, such stops are to be regarded as fairly incidental to its operation”). Such an instruction was inappropriate here where the Commonwealth’s theory was that the defendant was operating the vehicle by putting the 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 was “highly intoxicated.” Furthermore, the arresting officer reported that the dissertation defendant smelled very strongly of global war thematic alcohol, had slurred speech, was unsteady on his feet, and comparative research on c+ + and java, had glassy, bloodshot eyes. 13. The arresting officer testified that the vehicle was parked on war thematic essay, the street in front of a restaurant. 14. The defendant also argues that the Commonwealth failed to meet its burden by not introducing sufficient evidence that the defendant’s friend was not the anthropology help solve person operating the vehicle. See Commonwealth v. Boothby, 64 Mass.App.Ct. 582, 582-583 (2005) (police arrived at scene after accident and global history, multiple people claimed that they were driving the car at the time of the accident). Boothby, however, is thinking, distinguishable from the global history cold war thematic essay current case because, here, the police only best ways to get out of depression, 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 June 29, 2005 (the actual date of the pretrial hearing); and (2) twenty-six days between August 19, 2005 (the first scheduled date for the final pretrial hearing), and history cold, September 14, 2005 (the actual date of the final pretrial hearing).

16. The defendant’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. Ways To Get? 36(b)(2)(A)(iii). Due to a mutually agreed upon continuance, a change in counsel between the bifurcated portions of the trial, and history cold, another delay between the second portion of the newspaper trial and history, sentencing, the defendant was sentenced on March 24, 2006. Adding fourteen days to the sentencing date brings the date to April 7, 2006. Thus, the research total excludable period for the unrelated charge is 185 days from October 5, 2006, to global cold essay, April 7, 2006. 17. Having identified a sufficient number of excluded days to ways to get out of, confirm compliance with the requirement for a speedy trial, we do not compile a complete list of essay all excluded days.

18. Anthropology Solve Social Problems? The defendant also appeals from the denial of his pro se motion to dismiss under G.L. c. Global History? 276, § 35. Assuming, arguendo, that the judge denied the motion–there is no record of such ruling–and that this issue is techniques, properly before this court, we affirm. General Laws c. 276, § 35, applies only to mid-trial continuances and the delay complained of by global war thematic the defendant is prior to the commencement of trial and, thus, does not fall within the statute. A District Court jury found the defendant guilty of motor vehicle homicide by depression operation under the influence of intoxicating liquor and negligent operation (in violation of G.L. c. Essay? 90, § 24G[a]), and by negligent operation of a motor vehicle (in violation of G.L. c. 90, § 24[2][a]). 75 Mass. App. Ct. 643. Appeals Court of Massachusetts, Bristol. Argued March 6, 2009.

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

The trial judge did not offer a sufficiently adequate and contemporaneous explanation of her allowance of the peremptory challenge. In addition, the solve social judge erroneously admitted evidence of the defendant’s blood alcohol content without the requisite expert testimony and gave an erroneous jury instruction in relation to that evidence. Procedural background. On February 3, 2004, the New Bedford District Court issued a complaint charging the defendant with negligent operation of a motor vehicle in violation of G.L. c. 90, § 24(2)(a). On June 1, 2004, the global history same court issued an additional complaint charging the defendant with motor vehicle homicide by operation under the influence and negligent operation (in violation of G.L. Critical Activity? c. 90, § 24G[a]).1 On July 25, 2005, a District. Court judge allowed the global war thematic Commonwealth’s motion to amend the June 1 complaint to comparative on c+ java, add an alternate theory of intoxication, a 0.08 percent “per se” violation of the motor vehicle homicide statute.2 On May 15, 2006, jury empanelment commenced. [75 Mass. App. Ct. 645] in New Bedford District Court, and on May 19, 2006, the jury returned guilty verdicts on history cold war thematic, both charges.

The trial judge sentenced the defendant to obermeyer study, two and one-half years in history war thematic the house of correction on the motor vehicle homicide charge and a consecutive sentence of two years in the house of paper on c+ + and java correction on cold essay, the negligent operation charge. In December of 2006, the defendant filed a motion for activity relief from an unlawful sentence. He claimed that the negligent operation conviction was duplicative of the war thematic essay motor vehicle homicide conviction. In January of 2007, the trial judge allowed the motion. The allowance of that motion is not at de la dissertation, issue in this appeal.3. Background. The evidence at trial included the following. On November 27, 2003, at global history cold war thematic, approximately 8:30 P.M., the defendant’s jeep and newspaper research, the victim’s vehicle collided at an intersection in New Bedford.

Four people witnessed the collision, and global war thematic essay, each of them testified at trial. According to the witnesses, the defendant’s jeep went through a stop sign at a high rate of speed and research paper on c+ + and java, struck the victim’s vehicle. A New Bedford police officer arriving at war thematic essay, the scene after the accident saw the research defendant pacing back and forth in global cold an agitated manner. The officer spoke to the defendant and did not detect the odor of alcoholic beverages. The officer did not observe any other signs of intoxication, such as a lack of balance. The victim died at the scene from multiple traumatic injuries. Paramedics took the defendant to how can solve social, the nearest hospital for treatment. Shortly after the collision, a New Bedford Police Department accident reconstruction expert investigated the cause of the crash. She analyzed the damage to global cold, the vehicles and made numerous measurements of the crash scene. Based on her investigation, the help expert concluded that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection.4. [75 Mass.

App. Ct. 646] Soon after the defendant arrived at the hospital, two New Bedford police officers interviewed him. According to the officers, the defendant was “angry [and] agitated” and his breath smelled of alcoholic beverages. He told the officers that he had consumed “a forty of global war thematic essay OE,” a forty-ounce bottle of best ways to get Olde English brand beer. Both officers testified that the defendant’s demeanor changed when one of the officers notified him of the victim’s death. While at the hospital, the defendant complained of cold pain in his chest. In response to his complaint, hospital staff drew a blood sample from research paper on c+, him and history war thematic, analyzed it.

The doctor who had treated the defendant testified that his blood serum sample had an alcohol reading of 185 milligrams per newspaper research, deciliter. A laboratory supervisor from the Massachusetts State police crime laboratory testified that the global war thematic essay reading translated to a whole blood alcohol level of .15 to critical thinking activity, .16. Discussion. 1. Global History Cold? Peremptory challenge. Jury selection proceeded over + and java, two days. On the first day, the global war thematic judge called juror to side bar for research paper + and further questions.

The juror told the global history cold 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 best ways advance of the parties’ challenges. The next day, the Commonwealth invoked one of its peremptory challenges to exclude juror. The judge noted that juror nineteen was the only African-American in history the jury pool from either day. Techniques Dissertation? She asked the Commonwealth to explain the global history cold challenge. In response, the prosecutor gave two reasons: (1) the juror’s speech and mannerisms indicated that she was slow and might have difficulty in the deliberation of the evidence of dissertation a three- or four-day trial; and (2) the prosecutor’s discomfort caused by global history war thematic the juror’s fixed stare at him during empanelment.5 The judge then determined that the prosecutor’s explanation was not race-based. [75 Mass. App.

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

One having to do with the adequacy of the Commonwealth’s position once having been questioned about the reason for the challenge and then the genuineness of that.” Although the prosecutor had not mentioned the criminal. [75 Mass. App. Global History Cold War Thematic Essay? Ct. 648] history of juror nineteen’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 activity for adults statement that “I find … the Commonwealth’s explanation both adequate and genuine, which is global history cold essay, why I allowed the challenges to stand.” Article 12 of the research journals Declaration of Rights of the Massachusetts Constitution and the equal protection clause of the Federal Constitution prohibit the use of peremptory challenges to exclude prospective jurors on cold essay, the basis of race. See Commonwealth v. Techniques? Harris, 409 Mass. 461, 464, 567 N.E.2d 899 (1991). “[W]e begin with the presumption that a peremptory challenge is proper.” Commonwealth v. Smith, 450 Mass. History Cold Essay? 395, 406, 879 N.E.2d 87, cert. denied, ___ U.S. ___, 129 S.Ct.

202, 172 L.Ed.2d 161 (2008). Ways To Get Depression? However, one may rebut that presumption through proof “that (1) a pattern of conduct has developed whereby several prospective jurors who have been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.” Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. History Essay? denied, 444 U.S. 881, 100 S.Ct. Dissertation? 170, 62 L.Ed.2d 110 (1979). Either the party opposed to the challenge or the trial judge, sua sponte, may raise the global war thematic issue of the techniques dissertation propriety of the challenge. See Commonwealth v. Maldonado, 439 Mass.

460, 463, 788 N.E.2d 968 (2003). When “the judge initiates a sua sponte inquiry into the justification for the challenge, this initiation almost necessarily includes an implicit finding that the prima facie case of discrimination has been made.” Id. at 463 n. 5, 788 N.E.2d 968. Once the essay prima facie case of discrimination has been made, the newspaper research proponent of the peremptory challenge must provide an global history cold war thematic essay explanation which “pertain[s] to the individual qualities of the prospective juror and not to that juror’s group association.” Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. Case Study? If the proponent’s. [75 Mass.

App. Ct. 649] explanation seems superficial, the judge. should also allow rebuttal from the adverse party. See Commonwealth v. Calderon, 431 Mass. 21, 26, 725 N.E.2d 182 (2000).

The judge must then “make an independent evaluation of the [proponent's] reasons and … determine specifically whether the explanation was bona fide or a pretext.” Ibid. “In other words, the global history judge must decide whether the explanation is both `adequate’ and `genuine.’” Commonwealth v. Maldonado, supra at 464, 788 N.E.2d 968, quoting from Commonwealth v. Garrey, 436 Mass. 422, 428, 765 N.E.2d 725 (2002). “[I]t is imperative that the record explicitly contain the help judge’s separate findings as to both adequacy and genuineness and, if necessary, an explanation of those findings.” Commonwealth v. Maldonado, supra at 466, 788 N.E.2d 968. See Commonwealth v. Benoit, 452 Mass. Global History War Thematic? 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 to get out of depression prosecutor (the proponent of the challenge) and allowed defense counsel to respond. See Commonwealth v. Soares, supra at 491, 387 N.E.2d 499; Commonwealth v. Calderon, supra at 26, 725 N.E.2d 182. The prosecutor explained that he was challenging the juror because he believed her to be “slow” and because she had stared at him in a discomforting manner. The judge received defense counsel’s opposing response. Global Cold War Thematic? She then stated that, although the juror had “a halting speech pattern,” she did not find the juror mentally slow. To Get Depression? However, the judge concluded that the prosecutor had not misused the challenge and allowed it. It was not until the next day that the judge explicitly found the prosecutor’s explanation to be adequate and genuine. The judge’s own language demonstrates that she recognized generally the two-part standard of adequacy and genuineness. However, her ruling falls short of the firm and timely explanation for global cold essay allowance required by the line of cases culminating in Commonwealth v. Critical? Benoit, supra.

As in Commonwealth v. Maldonado, supra, and global history cold, Commonwealth v. Benoit, we cannot conclude that the judge properly allowed the challenge because the record does not show a prompt assessment of the adequacy and genuineness of the prosecutor’s explanation of the peremptory challenge. See Commonwealth v. Maldonado, supra at 466-467, 788 N.E.2d 968 (judge should not have accepted prosecutor’s peremptory challenge where judge. [75 Mass. App. Ct. 650] requested explanation and then allowed challenge but “did not find that the prosecutor had met her burden of establishing an adequate, race-neutral explanation that was the genuine reason for the challenge”); Commonwealth v. Benoit, supra at 222-226, 892 N.E.2d 314 (defendant’s right to trial by jury selected without discrimination not adequately protected where court could not determine whether trial judge gave meaningful consideration to adequacy and genuineness of reason for thinking activity for adults peremptory challenge).

In sum, the cold war thematic essay record contains references to three possible grounds for disqualification of the critical for adults juror: her staring at the prosecutor; her suspected slowness; and the recent involvement of her son as a defendant prosecuted by the same district attorney’s office.9 The judge did not address. the ground of staring.10 She rejected the suspected slowness. Global War Thematic Essay? She introduced, a day later, the experience of the techniques de la dissertation son, a potentially serious ground but one never invoked by the prosecutor in global cold essay support of the suspect peremptory challenge.11 In these circumstances, we simply do not have the specific, clear findings upon adequacy and genuineness required by the cases to sustain the peremptory challenge. In particular, the judge did not find either of the prosecution’s grounds adequate, i.e., “personal to the juror and not based on the juror’s group affiliation” and newspaper journals, “related to the particular case being tried,” however genuine or bona fide the offer may have been. Commonwealth v. History Cold Essay? Maldonado, 439 Mass. at 464-465, 788 N.E.2d 968.

The governing standard is demanding. The precedents require reversal of the convictions. 2. Evidence of blood alcohol content. The Commonwealth. [75 Mass. App. Ct. 651] began trial with two theories of operation under the influence, the per se theory (blood alcohol content of sport obermeyer essays 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 history war thematic essay 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’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. 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: “The law says that if the percentage of alcohol by weight in the defendant’s blood was .08 percent or more[,] from such evidence you may, if you wish, draw an inference that the defendant was under the influence of intoxicating liquor at the time.” For reasons discussed below, the instruction was erroneous. The defendant did not object to the blood test evidence, the prosecutor’s reference to it in his summation, or the judge’s erroneous instruction. In 2003, the Legislature amended both G.L. c. 90, § 24G, the research journals 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 global history war thematic essay defendant had “a percentage, by weight, of alcohol in [his] blood of eight one-hundredths or greater.” G.L. c. 90, § 24G(a). Prior to the amendments, the statutes allowed the permissible inference of intoxication when the defendant had a blood alcohol content of .08 percent or greater. Commonwealth v. Colturi, 448 Mass. Newspaper? 809, 811-812, 864 N.E.2d 498 (2007). The 2003 amendments eliminated. the permissible inference and replaced it with a conclusive inference. See Commonwealth v. Hubert, 71 Mass.App.Ct. 661, 662, 885 N.E.2d 164 n. 2, S.C., 453 Mass. 1009, 902 N.E.2d 368 (2008).

In Commonwealth v. Colturi, supra, the Supreme Judicial Court held that, if the history essay Commonwealth relies solely on an impaired operation theory, breathalyzer readings are inadmissible in the. [75 Mass. App. Ct. Ways? 652] absence of expert testimony to explain their significance. Id. at 817-818, 864 N.E.2d 498. The decision states: “If … the Commonwealth were to proceed only on a theory of impaired operation [instead of both a per se theory and an impaired operation theory] and offered a breathalyzer test result of .08 or greater, without evidence of war thematic its relationship to comparative research on c+ + and java, intoxication or impairment and without the statutorily permissible inference of intoxication eliminated by global cold war thematic essay the 2003 amendments, the jury would be left to guess at its meaning.” Ibid. As for trials where the Commonwealth relies on critical for adults, both theories, the decision states further: “[I]f the per se and impaired ability theories of criminal liability are charged in the alternative … and so tried, we see no prejudice in the admission of breathalyzer test results without expert testimony establishing the significance of the test level to the degree of intoxication or impairment of the defendant.

In such a case, the jury presumably would be instructed that if they find the global cold war thematic essay 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 comparative paper + and operating while under the influence of cold war thematic essay intoxicating liquor.” Id. at 817, 864 N.E.2d 498. To Get? We presume that this language applies to the results of blood tests in addition to global history war thematic, the results of breathalyzer tests. After issuance of Commonwealth v. Colturi, supra, we held, in solve social Commonwealth v. Hubert, supra, that where the Commonwealth relied solely on history cold essay, an impaired operation theory, and the judge admitted breathalyzer results without expert testimony and over the defendant’s objection, admission of the results required reversal. Id. at 664, 885 N.E.2d 164. In this case, the how can help problems complaint charged both theories. The judge admitted evidence of the defendant’s blood alcohol content without expert testimony to essay, explain its relationship to intoxication. Ways To Get Depression? The judge did not instruct the jury on the per se theory. 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. Global Cold Essay? Colturi, supra at 811-812, 864 N.E.2d 498; Commonwealth v. Hubert, supra, at 662 n. 2, 885 N.E.2d 164.12 The defendant argues that the erroneous instruction and the admission of the sport obermeyer case study essays blood test evidence without the requisite expert testimony require reversal. Since the defendant did not object to the alleged errors, we review for global cold war thematic essay the substantial risk of newspaper research journals a miscarriage of global history war thematic justice. Under that standard, the question becomes whether the erroneous instruction and the blood alcohol evidence may have influenced the verdict of to get depression guilt. Commonwealth v. Alphas, 430 Mass.

8, 13, 712 N.E.2d 575 (1999). See Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002); Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002). Even without the history essay blood test, the Commonwealth’s evidence of intoxication was strong. Sport Case Study? The percipient witnesses testified that the defendant drove through a stop sign at a high speed and hit the victim’s vehicle. A police officer who was at the scene testified that the defendant was agitated, although he testified also that he did not notice any other signs of intoxication. The accident reconstruction expert testified that the defendant’s jeep had been traveling at sixty-four miles per hour when it entered the intersection. Global War Thematic Essay? 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 best depression the evening. However, the laboratory supervisor’s testimony that the history essay defendant had a blood alcohol content between .15 and .16 percent may have been the most compelling evidence of intoxication.

Without it, the Commonwealth’s evidence was “strong but not overwhelming.” Commonwealth v. Hubert, 71 Mass.App.Ct. at 663, 885 N.E.2d 164. Paper + And? Here, as in Hubert, police testimony about the defendant’s signs of history war thematic essay intoxication differed. Under the impaired operation theory submitted to the jury, the error may have materially influenced the verdict and therefore created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967)13; Commonwealth v. Alphas, 430 Mass. at 13, 712 N.E.2d 575.

[75 Mass. App. Ct. 654] Conclusion.14,15 For the foregoing reasons we reverse the judgments and set aside the verdicts. The case is remanded to the District Court for a new trial or other proceedings consistent with this opinion. 1. In addition to the negligent operation charge, the February 3 complaint charged the defendant with motor vehicle homicide by negligent operation in violation of G.L. c. 90, § 24G(b). Problems? After issuance of the June 1 complaint, which charged the defendant with motor vehicle homicide by operation under the war thematic essay influence and by obermeyer case negligent operation (in violation of global essay G.L. c. Comparative Research Paper + And? 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 cold war thematic, prove operation under the techniques de la influence: (1) operation “with a percent by weight, of alcohol in global war thematic [the] blood of eight one-hundredths or greater, or [2] while under the influence of intoxicating liquor.” G.L. Comparative Research Paper Java? c. 90, § 24G(a), as amended through St.2003, c. 28, § 21.

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

3. In April of 2007, after a hearing, the trial judge allowed the Commonwealth’s motion to file a late notice of appeal from the grant of the defendant’s motion for relief from an unlawful sentence. The Commonwealth’s appeal has not entered in this court. In its brief, the Commonwealth does not argue the propriety of the techniques grant of the motion. Therefore, we do not address it. 4. She opined also that the defendant’s jeep had struck a vehicle parked on the side of the road prior to the collision with the victim’s vehicle. 5. In its entirety, the prosecutor’s explanation was: “Judge, she appears slow to me at side-bar in her speech and mannerisms and while we were impaneling today, I locked eyes with her a few times and it appeared to me that she was staring at cold war thematic, me, staring me down while we were at sport obermeyer study, the side-bar; and it bothered me.

But I do find that she’s slow at side-bar speaking with her, in cold essay her speech; and I’m concerned that this is a three or four day trial, a lot of witnesses; and I’m concerned about her ability to sport case study essays, try the evidence.” 6. The judge observed that the defendant had adequately preserved the issue for appeal. During the discussion of the challenge, the judge asked the prosecutor why he had used another peremptory challenge on juror fourteen. On the previous day, the judge had asked juror fourteen, a white male, some questions at side bar, and global cold essay, the juror had noted the presence of only one African American in the venire. The prosecutor stated that he should not have to study, explain his use of global cold war thematic a peremptory challenge on juror fourteen because the juror was not a member of a protected class. Research Java? However, he supplied an explanation, and the judge allowed the challenge. 7. The parties assert that the judge stated that she had read Commonwealth v. Maldonado, 439 Mass. 460, 788 N.E.2d 968 (2003). However, the transcript reflects that the judge stated that she “look[ed] over history war thematic essay, the case law, particularly Commonwealth v. Mulder (phonetic), with respect to the possibility of critical activity for adults a peremptory challenge being used to exclude members of a [discrete] group….” The reference (jumbled in transcription) most probably was the Maldonado decision. 8. The judge’s reference to war thematic, the criminal history of anthropology help solve juror nineteen’s son was as follows: “I would also add that it was known to all of us that [juror nineteen] had had a son who had apparently a criminal matter in this court, perhaps even before me because she seemed to recall me, just this past fall that was prosecuted by the district attorney’s office and apparently came up…. [A]nd I don’t remember the case per se but she spoke about it.

It apparently just happened last fall.” The judge went on to say that she understood the Commonwealth’s concern “whether she could perform in a truly objective manner” because her son had experienced the global history cold criminal justice process and subsequent incarceration. The record does not show any expression of best ways to get out of that specific concern by the prosecutor. 9. As mentioned above, in the next-day review of her reasons for global history cold essay allowance of the peremptory challenge, the judge referred to the experience of anthropology help solve social juror nineteen’s son in the New Bedford District Court. See note 8, supra. The prosecutor did not refer to the criminal history of the juror’s son as justification for global war thematic his peremptory challenge. A judge may not supply her own reasons to justify a prosecutor’s peremptory challenge. De La? See Commonwealth v. Fryar, 414 Mass. 732, 739, 610 N.E.2d 903 (1993), S.C., 425 Mass.

237, 680 N.E.2d 901, cert. Global History Cold War Thematic? denied, 522 U.S. 1033, 118 S.Ct. 636, 139 L.Ed.2d 615 (1997). 10. That explanation had little chance of success. “Challenges based on subjective data such as a juror’s looks or gestures, or a party’s `gut’ feeling should rarely be accepted as adequate because such explanations can easily be used as pretexts for discrimination.” Commonwealth v. Maldonado, 439 Mass. at solve, 465, 788 N.E.2d 968.

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

Therefore the judge and global history cold essay, trial counsel did not have the benefit of those interpretations of the 2003 amendments. 13. In Commonwealth v. Hubert, supra at 664, 885 N.E.2d 164, defense counsel made timely objections and preserved the issue so that the standard of review was the comparative on c+ + and presence of prejudicial error. Here we have reviewed the issue under the less demanding standard of substantial risk and found the error again sufficiently serious to history, require reversal. 14. As mentioned in the introduction, supra, the defendant argues also that extraneous influences on the jury and alleged calculated impropriety by the prosecutor require reversal. The extraneous influences were (1) a shout by the victim’s mother at the defendant as the jurors left the courtroom on the first day of trial, and (2) the presence of a makeshift memorial to the victim at the accident scene during the jury’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 “killed” the victim. The defendant asserts that the prosecutor intended that the officers testify in this manner, in violation of the judge’s decision on a motion in sport study limine.

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

Massachusetts OUI Case – Defendnat admitted to the officer that his driver’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. Supreme Judicial Court of Maine. Argued: November 9, 2009. Decided: April 13, 2010. COPYRIGHT MATERIAL OMITTED.

Andrew S. Robinson, Asst. Dist. Atty. (orally), Franklin County DA’s Office, Farmington, ME, for the State of Maine. Walter Hanstein III, Esq. (orally), Joyce, David #038; Hanstein, P.A., Farmington, ME, for Gerald W. Gilman. Panel SAUFLEY, C.J., and on c+ java, 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 global history war thematic essay court imposed on Gerald W. Gilman following his conviction at a bench trial for operating after habitual offender revocation (Class C), 29-A M.R.S. ? 2557-A(2)(D)(2)(2008).1 See M.R.Crim. P. 35(a). The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the paper on c+ + and minimum mandatory two-year term of imprisonment required by the statute. The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that “all penalties and punishments shall be proportioned to global history, the offense.” Me. Const. art. Obermeyer Case Study? I, ? 9. ? 2 Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights.2 Additionally, he argues that the.

court erred in admitting a certified record from the Secretary of global history cold war thematic 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’s appeal is techniques de la, accompanied by the written approval of the Attorney General as required by 15 M.R.S. War Thematic Essay? ? 2115-A(2-B), (5) (2009) and M.R.App. De La? P. 21(b). Because we agree with the State’s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman’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. He had not been drinking. Gilman, a member of the local Elks Club, was returning from the club’s lodge, where he had repaired a broken walk-in cooler. Gilman admitted to the officer that his driver’s license was suspended, and at trial he testified that he knew he was suspended for an operating under the influence (OUI) conviction. In fact, Gilman’s license had been revoked as a result of multiple previous convictions, which included three convictions for global history cold war thematic essay OUI within the previous ten years. A certified record from the Secretary of State, admitted at trial over Gilman’s objection, showed that he had been given proper notice of the obermeyer essays revocation. ? 5 Gilman was indicted for operating after revocation (Class C). The charge was enhanced because of his three OUI convictions within the previous ten years.

29-A M.R.S. ? 2557-A(2)(D)(2). Section 2557-A, which was enacted as part of what is popularly known as “Tina’s Law,” provides that in that circumstance “the minimum fine . . . is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by the court.” 29-A M.R.S. ? 2557-A(2)(D); P.L. 2005, ch. 606, ? A-11 (effective Aug. History Cold War Thematic? 23, 2006).

? 6 Gilman moved to dismiss the allegation of the aggravating factor of his prior OUI convictions as a violation of his equal protection guarantees. Dismissal of the allegation would have reduced the charge to a Class D crime. Sport Case Essays? 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 Confrontation Clause would be violated by the admission of a certificate issued by the Secretary of history cold war thematic State under seal declaring that (1) his right to drive was under revocation when he was stopped, (2) he had proper notice of the revocation, and (3) his driving record included three OUI convictions within the previous ten years. The court (Murphy, J.) overruled the objection, denied Gilman’s motion for a judgment of acquittal, and took the ways out of ultimate issue of whether the State had met its burden of proof under advisement. Gilman then filed a written. argument asking the court to revisit its earlier rejection of his equal protection argument, and asserting that the mandatory two-year sentence that would result if he were convicted would violate article I, section 9 of the Maine Constitution. The court heard argument and took the issues under advisement. ? 8 On September 8, the court issued a written decision finding Gilman guilty beyond a reasonable doubt.

The decision further explained the court’s reasoning on the Confrontation Clause issue and again denied Gilman’s equal protection claim. On his claim of unconstitutionally disproportionate punishment, the court deferred a decision pending further argument by the parties. Before further argument could be heard, Gilman moved the court to reconsider its verdict, citing State v. Stade, 683 A.2d 164 (Me.1996), as authority for his argument that convicting him of a Class C offense constituted a due process violation because the State did not individually notify him that “Tina’s Law” increased the penalties if he were to be convicted of global history OAR after it took effect. ? 9 On October 27, the court heard argument on Gilman’s due process claim and denied it. It then heard testimony relevant to the disproportionate punishment issue and sentencing from comparative on c+ + and java, four witnesses: another member of the Elks Club, a psychiatrist who treated Gilman through the United States Department of history war thematic essay Veterans Affairs, Gilman’s sister, and Gilman himself.

At the conclusion of the social hearing, the court took the disproportionate punishment issue and the sentence under advisement. ? 10 On November 17, the court issued written findings and conclusions: This Court concludes, after consideration of the characteristics of Mr. Global History War Thematic Essay? Gilman, as well as the manner in which this sentence would be carried out, that imposition of a two-year mandatory minimum sentence would be greatly disproportionate to the offense, and also concludes that it would offend prevailing notions of decency. The Defendant has carried his burden in 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 court conducted the how can anthropology help solve statutorily required sentencing analysis on the Class C conviction and sentenced Gilman to fifteen months imprisonment, with all but ninety days suspended, two years of probation, 500 hours of community service, and a $1000 fine. Cold War Thematic? See 17-A M.R.S. ? 1252-C (2009).

The State orally moved the court to best depression, correct what it viewed as an history cold essay illegal sentence pursuant to M.R.Crim. P. 35(a);4 the motion was denied orally and best ways, later in a written order. This appeal and cross-appeal followed. A. Scope of Article I, Section 9. ? 12 Article I of the Maine Constitution is a declaration of rights enjoyed by Maine citizens. Section 9 sets limits on the State’s power to punish: “Sanguinary laws shall not be passed; all penalties and punishments shall be proportioned to the offense; excessive bail shall not be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.” Me. Const. art. History Cold War Thematic? I, ? 9. ? 13 The statute under which Gilman was convicted unambiguously required the Superior Court to impose an unsuspended prison sentence of at least two years. 29-A M.R.S. ? 2557-A(2)(D).

Accordingly, the court’s lesser sentence was facially illegal unless the court was correct in its two central rulings: (1) article I, section 9 requires that punishments be proportionate to the offense after considering the circumstances of the particular offender, not simply proportionate to how can anthropology solve social problems, the offense itself, and (2) because of history cold Gilman’s individual circumstances, the mandatory sentence was disproportionate to his offense, and on c+ java, therefore the statute is unconstitutional in global history cold this instance.5 Gilman’s burden is significant, as “one challenging the techniques de la constitutionality of a statute bears a heavy burden of proving unconstitutionality since all acts of the Legislature are presumed constitutional.” State v. Vanassche, 566 A.2d 1077, 1081 (Me.1989) (quotation marks omitted). We review de novo whether he met that burden through a showing of “strong and convincing reasons.” Town of Frye Island v. Global History Cold Essay? State, 2008 ME 27, ? 13, 940 A.2d 1065, 1069. ? 14 Whether the Maine Constitution requires that punishments be proportionate to the offender, as well as the offense, has been an open question. In discussing a closely related provision of research 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 global cold war thematic essay which the sentence is carried out, there was not enough information in this case for sport case study essays 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 cold war thematic essay, the offense for which a person is convicted, (2) the two-year mandatory sentence prescribed by statute is newspaper research, proportionate to the offense that Gilman committed, and (3) the sentence imposed by the trial court was therefore illegal and. must be vacated. Accordingly, to global cold war thematic, the extent that Worthley suggested that it may be possible for a mandatory sentence to be unconstitutionally disproportionate under article I, section 9 solely because of an individual defendant’s particular circumstances, we now hold that it is not possible. ? 16 The plain language of section 9 requires that “punishments shall be proportioned to the offense.” Me. Newspaper Research Journals? 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 a constitutional provision, we apply the plain language of the constitutional provision if the history war thematic essay language is unambiguous. Voorhees v. Sagadahoc County, 2006 ME 79, ? 6, 900 A.2d 733, 735-36 (citation omitted) (quotation marks omitted). The language of java section 9 is unambiguous, and war thematic essay, therefore we give it its plain meaning.

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

required an individualized determination that a mandatory punishment is appropriate except in death penalty cases. See Harmelin v. Michigan, 501 U.S. 957, 996, 111 S.Ct. Global Cold War Thematic? 2680, 115 L.Ed.2d 836 (1991) (“We have drawn the line of required individualized sentencing at dissertation, capital cases, and global history cold, see no basis for extending it further.”). Regarding the Federal Constitution, the ways to get First Circuit Court of Appeals noted: There is no constitutional right, in non-capital cases, to individualized sentencing.

Legislatures are free to history cold, provide for mandatory sentences for particular offenses.. . Ways Depression? . The mere fact that a sentence is war thematic essay, mandatory and obermeyer case study, severe does not make it cruel and unusual within the meaning of the Eighth Amendment. United States v. Campusano, 947 F.2d 1, 3-4 (1st Cir.1991). ? 19 A plain-language construction of section 9 is further supported by our cases holding that the Legislature has the power to history essay, 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 comparative research Legislature may lawfully choose to remove a sentencing court’s discretion when it determines it is global history cold war thematic essay, 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 sport case study essays language of section 9 requires and effectively vitiate all mandatory sentencing statutes. ? 20 A minimum mandatory sentence is the Legislature’s establishment of a basic sentence, and history cold war thematic essay, a legislative decision that a sentencing court may not find that mitigating factors justify a lesser maximum sentence.9 Consideration of a defendant’s individual circumstances in paper + and finding that a mandatory sentence is disproportionate as applied to global history cold war thematic, that person is simply reinstatement by judicial declaration of a sentencing court’s ordinary discretion to weigh mitigating factors, and then impose a maximum sentence that is lower than the basic sentence. See 17-A M.R.S. ? 1252-C(2). A court would then always have the sentencing discretion that the Legislature intended to remove, because individual mitigating circumstances could always be used as justification to techniques de la, impose less than the mandatory minimum sentence on the ground that the mandatory sentence is disproportionate as applied in global history essay a particular case. Newspaper? We do not read article I, section 9 to global history cold, render the Legislature’s authority to enact mandatory sentences a nullity.10.

? 21 Because we hold that the clause, “all penalties and punishments shall be proportioned to the offense,” means what its plain language says, and does not require consideration of the individual circumstances of each offender, the techniques sentence imposed on Gilman was illegal unless it. was disproportionate to global history war thematic, the crime he committed. B. Obermeyer Essays? The Two-Year Minimum Mandatory Sentence. ? 22 This Court “always has the global cold power and duty to uphold the State and Federal Constitutions,” and will “protect the individual from an unconstitutional invasion of his rights by the legislative . . . branch of government.” Dep’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 “the voice of the sovereign people” in the area of anthropology problems crime and punishment: The fixing of an adequate criminal penalty is properly and legitimately a matter of history cold essay legislative concern. It is not the office of the judiciary to interpose constitutional limitations where none need be found. Of course a mandatory sentence of great severity may at some point lose its rational relation to a permissible legislative purpose; a disparity between the sentence and the evil to on c+ java, be avoided might then be a cruelty of constitutional dimensions. It seems to us that the war thematic essay interest of the critical activity for adults legislature is paramount in the field of penology and the public safety. The legislature defines the contours of the crime itself, and sets the essay limits for punishment. . . . The underlying structure of the ways out of depression penal system is statutory; the history war thematic essay coherence of the system is to be found in legislative direction. State v. King, 330 A.2d 124, 127-28 (Me.

1974); see State v. Benner, 553 A.2d 219, 220 (Me.1989) (“The power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime and ordain its punishment.” (quotation marks omitted)). ? 23 We have described the test for determining when a sentence is cruel and how can anthropology solve problems, unusual as whether it “is greatly disproportionate. History Cold? . . and journals, whether it offends prevailing notions of history cold war thematic decency,” Worthley, 2003 ME 14, ? 6, 815 A.2d at 376; whether it “shocks the conscience of the public, or our own respective or collective sense of fairness,” State v. Reardon, 486 A.2d 112, 121 (Me.1984); or whether it is “inhuman or barbarous,” State v. Heald, 307 A.2d 188, 192 (Me.1973). Because the Legislature is “the voice of the sovereign people,” King, 330 A.2d at 127, and critical activity, thus expresses the people’s will, only the most extreme punishment decided upon by that body as appropriate for an offense could so offend or shock the collective conscience of the cold war thematic essay people of Maine as to be unconstitutionally disproportionate, or cruel and unusual.11 In short, our system of government assumes that the judgment of the Legislature is the collective judgment of the people. ? 24 Gilman was convicted of obermeyer case study essays a Class C crime, punishable by a maximum of global five years imprisonment. See 17-A M.R.S. ? 1252(2)(C) (2009). The Legislature mandated a sentence for his conduct of best ways to get two years, or forty percent of the maximum.

29-A M.R.S. ? 2557-A(2XD). History Cold War Thematic Essay? It deemed that penalty necessary to prevent revoked drivers with three recent OUI convictions, who have repeatedly proved. that they are willing to endanger others by techniques operating a motor vehicle while impaired, from continuing to drive under any circumstances. A mandated sentence for that conduct on the lower end of the war thematic 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. How Can Help Social? Chapin, where the same argument was advanced and rejected. Global History Cold? 610 A.2d 259, 261 (Me.1992). ? 26 In Chapin, we concluded that the danger created by drunk drivers was “certainly strong enough” to justify the imposition of a minimum mandatory sentence for habitual offenders with OUI convictions who continue to drive. Id.

Gilman makes no showing that that danger has been reduced since 1992, when Chapin was decided, and we find that the rational relationship of prior OUI convictions to an enhanced sentence for operating after revocation remains intact. ? 27 Gilman next contends, on techniques, the authority of history war thematic essay State v. Stade, 683 A.2d 164, that because his license had been revoked, the comparative paper on c+ + and 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. History War Thematic Essay? See P.L. 2005, ch. 606, ? A-11 (effective Aug.

23, 2006). ? 28 In Stade, we held that a defendant’s due process rights may be violated when an agent of the State makes affirmative misrepresentations that are then relied upon to the defendant’s detriment. 683 A.2d at 166. Here the State did not make any affirmative misrepresentation as to thinking for adults, the penalties Gilman would face if he chose to global history, drive and thus knowingly violated the law. The Legislature changed the statute, the Governor signed it into help problems, law, and Gilman is presumed to know what the law is. History Cold Essay? See Houghton v. Hughes, 108 Me. 233, 236-37, 79 A. 909 (1911). Ways To Get? Contrary to Gilman’s argument, due process did not require that he be individually notified of the global history cold war thematic change in order to best ways out of depression, ensure that he could conduct a thoughtful cost/benefit analysis before consciously choosing to break the law. Moreover, the law in effect at the time of his most recent OUI conviction provided that he could be sentenced to as long as five years in prison for global the operation of any vehicle before his license was restored. See 17-A M.R.S. ? 1252(2)(C); 29-A M.R.S. Sport Case Study Essays? ? 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 global war thematic 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 how can anthropology help solve preceding ten years. As. with his equal protection challenge, Gilman acknowledges that he can prevail only if we overrule recent precedent, specifically State v. Tayman, 2008 ME 177, 960 A.2d 1151. In Tayman, we held that a disputed Secretary of State certification did not offend the Confrontation Clause because “the certification served only to confirm the authenticity of the underlying records of the Violations Bureau, which themselves contain only global history, routine, nontestimonial information.” 2008 ME 177, ? 24, 960 A.2d at 1158; see also State v. Knight, 2009 ME 32, ? 10, 967 A.2d 723, 725 (relying on newspaper, Tayman). ? 30 Gilman contends that Tayman must be overruled on the authority of the history cold war thematic essay Supreme Court’s decision in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). Newspaper Research? In Melendez-Diaz, the history cold Court held that the admission of a chemist’s certificate stating that an techniques de la analyzed substance was cocaine violated the history essay Sixth Amendment, because although “documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. . . that is not the case if the regularly conducted business activity is the production of techniques de la dissertation evidence for use at trial.” Id. at 2538, 174 L.Ed.2d at 328 (citation omitted).

? 31 We recently analyzed the impact of history cold war thematic 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’s argument fails. Judgment of ways to get out of depression conviction affirmed. Sentence vacated; remanded to the Superior Court for resentencing. 1 The statute provided:

D. Global Cold War Thematic Essay? A person is guilty of a Class C crime if the person commits the crime of operating after habitual offender revocation and: (2) The person has 3 or more convictions for violating section 2411 Criminal OUI or former Title 29, section 1312-B within the previous 10 years. The minimum fine for a Class C crime under this paragraph is $1,000 and the minimum term of imprisonment is 2 years, neither of which may be suspended by 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. Comparative Research? P.L.

2009, ch. 54, ? 5 (effective April 22, 2009) (codified at global essay, 29-A M.R.S. ? 2557-A(2)(D)(2) (2009)). 2 Gilman does not specify whether his due process and equal protection claims are grounded in newspaper research the United States or Maine Constitutions. In any event, those protections are coextensive. See Conlogue v. Conlogue, 2006 ME 12, ? 6, 890 A.2d 691, 694 (citing cases).

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

5 At oral argument, Gilman suggested that the minimum mandatory sentence for his offense must also be proportional in context, that is, it must be proportionate not only to his specific crime, but also to the sentences imposed by the Legislature for other crimes. We find no support for his contention that we must place crimes and global, penalties on a continuum before deciding whether a particular penalty is constitutional, and we do not address this argument further. 6 Although the Maine Constitution, unlike the United States Constitution, delineates the protections against disproportionate punishments and cruel or unusual punishments separately, both the Supreme Court and thinking for adults, this Court have understood them to be related. See Kennedy v. Louisiana, 554 U.S. ___, 128 S.Ct. 2641, 171 L.Ed.2d 525, 538 (2008) (“The Eighth Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive. . . . The Eighth Amendment’s protection . . . flows from the basic precept of justice that punishment for global history essay a crime should be graduated and proportioned to the offense.” (quotation marks omitted)); State v. Worthley, 2003 ME 14, ? 6, 815 A.2d 375, 376 (“In analyzing whether a sentence is cruel and unusual as applied, we look to whether the sentence is greatly disproportionate to the offense and how can anthropology help social problems, whether it offends prevailing notions of decency.”); State v. Frye, 390 A.2d 520, 521 (Me. Global History? 1978) (“A mandatory sentence is not cruel and unusual punishment unless the sentence is greatly disproportionate to the offense or the punishment offends prevailing notions of decency”); Tinkle, The Maine State Constitution: A Reference Guide (1992) at newspaper research, 43 (“The interpretation of `cruel or unusual punishment’ also is informed by the requirement of proportionality.”). 7 See Worthley, 2003 ME 14, ? 6, 815 A.2d at 376-77 (holding minimum mandatory sentence for OUI not disproportionate or cruel and unusual); State v. Vanassche, 566 A.2d 1077, 1080-81 (Me.1989) (holding forty-eight hour mandatory sentence for history cold war thematic essay OUI with blood-alcohol level of 0.15% or more not disproportionate to the crime); State v. Critical Activity For Adults? Frye, 390 A.2d 520, 521 (Me. Global History? 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 best ways night hunting not excessive); State v. King, 330 A.2d 124, 125, 127 (Me.1974) (holding minimum mandatory sentence for sale of amphetamine not disproportionate and essay, thus not cruel and unusual); State v. Farmer, 324 A.2d 739, 745-46 (Me.

1974) (holding minimum mandatory two-year sentence for armed assault not cruel and unusual); State v. Lubee, 93 Me. 418, 45 A. 520 (1899) (holding fine for short lobsters not unconstitutionally excessive and value of lobsters in particular case irrelevant); c.f. Anthropology Social? State v. Alexander, 257 A.2d 778, 783 (Me. 1969) (holding five-day sentence imposed by court in its discretion for global cold war thematic contemptuous “reprehensible conduct” not excessive or cruel or unusual). 8 See Kennedy, 554 U.S. Comparative Research On C+ + And? ___, 128 S.Ct. 2641, 171 L.Ed.2d at 540 (holding death penalty for non-fatal rape of global history cold war thematic 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 essays juveniles under age eighteen violates Eighth Amendment); Ewing v. California, 538 U.S. 11, 17-18, 30-31, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (holding sentence of twenty-five years to life for stealing three golf clubs under “three strikes” law not grossly disproportionate and therefore not cruel and unusual); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding death penalty for mentally retarded offenders violates Eighth Amendment); Harmelin v. Global History War Thematic Essay? 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 critical thinking for adults cocaine not cruel and unusual). 9 In felony cases where the global history essay applicable statute does not specify a mandatory sentence, the sentencing court first determines a basic sentence considering the nature and seriousness of the techniques 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.

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

12 Title 29-A M.R.S. History Cold War Thematic Essay? ? 2557 was repealed and replaced by P.L. 2005, ch. 606, ?? A-10, A-11 (effective Aug. 23, 2006) (codified at 29-A M.R.S. ? 2557-A (2008)). The indictment against Gilman alleged that his most recent OUI conviction occurred on October 14, 2005. Gautier’s conviction for comparative paper on c+ java being a felon in global history cold war thematic possession of a firearm pursuant to techniques dissertation, 18 U.S.C. § 922(g)(1) subjects him to the enhancement provision of the global history essay Armed Career Criminal Act. 590 F.Supp.2d 214. UNITED STATES of America, Eddie GAUTIER, Defendant.

Criminal No. Research Paper On C+ + And Java? 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’s Office District of Massachusetts, Boston, MA, for Eddie Gautier. William D. War Thematic Essay? Weinreb, United States Attorney’s Office, John A. Wortmann, Jr., United States Attorney’s Office, Boston, MA, for United States of America. GERTNER, District Judge: TABLE OF CONTENTS.

A. Newspaper Journals? Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Gen. 1. Whether the global history cold war thematic Crime Defined by Prong (2) of § 32B Is a Violent. 2. Whether the Crime Defined by Prong (2) of best depression § 32B Is a Violent. B. Whether the 1998 Juvenile Offenses Were Committed on Different. 2. Whether the global history essay Inquiry Is Limited, to Shepard-approved Source. Three years ago, Boston police found a badly rusted gun and ammunition in critical thinking activity for adults the pocket of defendant Eddie Gautier (“Gautier”) one night in Roxbury.

The offense stemmed from a night of drunken carousing; the gun was completely inoperable.1 Though he was originally arrested by history cold essay state officers, possession of an inoperable gun did not constitute a crime under state law. The federal government took up the case, charging Gautier with being a felon in possession of a firearm, pursuant to techniques, 18 U.S.C. War Thematic Essay? § 922(g)(1), because of his prior record. His prior convictions include two armed robberies from 1998, when he was 16, and a resisting arrest charge from 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 research paper Gautier. It contended that these convictions compelled the application of a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”). See § 924(e) (applying the penalty to defendants with at history cold war thematic, least three previous convictions for violent felonies committed on separate occasions). I disagree. In passing the ACCA, “Congress focused its efforts on career offenders— those who commit a large number of fairly serious crimes as their means of livelihood, and who, because they possess weapons, present at thinking activity for adults, least a potential threat of harm to persons.” Taylor v. History War Thematic Essay? United States, 495 U.S. 575, 587-88, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Gautier’s criminal history consists of six episodes over ten years; two occurred when he was 16 and two others were marijuana offenses.2 The.

predicate offenses for the ACCA enhancement are the two serious juvenile offenses, and resisting. After two rounds of briefing and two sentencing hearings, I found that Gautier is not an armed career criminal under the terms of the statute. Comparative + And Java? First, his resisting arrest conviction does not constitute a “violent felony” within the meaning of the ACCA. Second, and in the alternative, court records were ambiguous on the question of whether his 1998 offenses were “committed on occasions different from one another” as the statute requires. As a result, Gautier lacks the requisite three predicate offenses and global history cold, the mandatory minimum does not apply. Accordingly, I sentenced Gautier to 57 months’ incarceration, in effect the Guideline felon in possession sentence, and three years’ supervised release, with a number of special requirements. This memorandum reflects the factual and legal bases for that sentence. On the comparative on c+ + and java night of January 6, 2006, Eddie Gautier had come to the Archdale Housing Project to visit his mother. He decided to meet four friends who were out celebrating two of their birthdays. About 10:30 p.m., two Boston police officers patrolling the Archdale Housing Project in an unmarked police car approached the group.

One of Gautier’s friends, Salome Cabrera, peered into the vehicle and made movements toward his waistband. War Thematic? The officers exited the car, badges displayed, and walked to Cabrera. Cabrera then allegedly shouted “get the burner” (slang for gun), a comment Gautier claimed he did not hear, and critical thinking for adults, the police responded by drawing their weapons on the group. They arrested and searched all five, finding a .38 caliber gun loaded with three rounds of ammunition in global cold war thematic essay Gautier’s jacket pocket. An examination later revealed that the gun was completely inoperable.3. Gautier was transferred to federal custody on February 8, 2006, and indicted on February 15, 2006, on one count of felon in possession of a firearm and one count of activity for adults felon in possession of ammunition, both pursuant to 18 U.S.C. Global History Cold War Thematic Essay? § 922(g)(1). Subsequent to his arrest, he agreed to speak to federal agents and comparative on c+ + and java, 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 history essay, the charge, but was advised against it because of the possibility of an ACCA minimum mandatory sentence of 15 years. Counsel for how can solve problems Gautier sought a pre-plea Pre Sentence Report (“PSR”). When the pre-plea PSR concluded that an ACCA enhancement was required, the defendant felt obliged to go to trial. At trial, he fully admitted that he possessed a firearm and that he had a prior felony conviction. His defense was that he had picked up the gun and held it momentarily, to keep it from a group of younger, intoxicated friends in a dangerous area of Boston.

The jury rejected his claim, convicting him of both counts on July 18, 2008. He has been incarcerated since his arrest on January 6, 2006. At the global cold war thematic essay first sentencing hearing on October 15, I asked the government to brief whether resisting arrest qualifies as an ACCA predicate, an issue raised in the defendant’s objections to on c+ java, the presentence report. On that date, I also raised sua sponte the issue of whether the juvenile. offenses Gautier committed in 1998 were clearly separate predicates. Essay? At the final sentencing hearing on December 15, 2008, after reviewing the parties’ submissions, I concluded that the ACCA enhancement was not warranted, principally because of the resisting arrest conviction but based on alternative findings concerning the two 1998 convictions, as well.

Gautier’s conviction for being a felon in possession of a firearm pursuant to 18 U.S.C. Techniques De La? § 922(g)(1) subjects him to global history war thematic, the enhancement provision of the Armed Career Criminal Act. That statute provides: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years…. 18 U.S.C. § 924(e)(1). Critical Thinking? Gautier’s sentencing memorandum and recent Supreme Court decisions raise two potential obstacles to the applicability of the sentencing enhancement: First, Gautier’s conviction for resisting arrest may not be a “violent felony” under the ACCA.

Second, the government may have difficulty establishing, on the basis of source material deemed appropriate by the Supreme Court, that the history 1998 offenses were “committed on occasions different from best, one another.” A. Whether Gautier’s 2001 Crime of Resisting Arrest under Mass. Gen. Laws Ch. 268, § 32B Is a Violent Felony. The ACCA defines “violent felony” as any crime punishable for history a term exceeding one year that “(i) has as an element the use, attempted use, or threatened use of techniques physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Courts are obliged to apply a categorical approach to determining whether a criminal offense is a violent felony; that is, they look to the statutory definition of the prior offense and not to the facts underlying the global cold war thematic conviction. See Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143.

Put simply, the to get out of depression issue is what the global cold 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 de la dissertation interpretation arise when a state statute on which the predicate charge was based encompasses both violent felonies, which may qualify for ACCA treatment, and nonviolent felonies, which do not. In such a case, while the sentencing judge “may not hold a minitrial on the particular facts underlying the history war thematic essay prior offense,” see United States v. Dissertation? 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. History Cold Essay? Meader, 118 F.3d 876, 882 (1st Cir.1997)), he or she may “peek beneath the coverlet” of the formal language to ascertain whether the conviction was for a violent or a nonviolent crime, see United States v. Winter, 22 F.3d 15, 18 (1st Cir.1994). The question, now unequivocally answered by the Supreme Court in obermeyer study essays Shepard v. United States, 544 U.S. Global Essay? 13, 125 S.Ct. How Can Solve? 1254, 161 L.Ed.2d 205 (2005), is how far that “peek” can go. “Not very far, is the answer.” United States v. Shepard, 125 F.Supp.2d 562, 569 (D.Mass.2000) (citing Taylor, 495 U.S. at global history, 600-02, 110 S.Ct.

2143; Damon, 127 F.3d at 142-46.) If the research defendant was convicted after a trial, the court is permitted to consider what the jury instructions suggested about the verdict. When a defendant’s conviction resulted from a guilty plea rather than trial, those sources include the charging document, the plea agreement, a transcript of the plea colloquy, any facts confirmed by the defendant at cold essay, sentencing, and any comparable judicial record. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. Finally, if the relevant facts contained in the PSR are uncontested, the research on c+ java court may consider these as further admissions by the defendant. War Thematic? See Dueno, 171 F.3d at 7; United States v. Harris, 964 F.2d 1234,1236-37 (1st Cir.1992). Defendant claims that the sport obermeyer case study essays Massachusetts resisting arrest statute embodies both violent and nonviolent offenses and, further, that nothing in the record of Gautier’s 2002 plea to the charge establishes that the plea was to the violent version of the felony. Under the Massachusetts statute, a person is guilty of the history cold war thematic offense if he knowingly prevents or attempts to prevent an officer from effecting an arrest by sport case “(1) using or threatening to global history war thematic, use physical force or violence against the police officer or another; or (2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.” Mass. Gen. Laws ch. 268, § 32B(a).

The government correctly points out that Prong (1) of anthropology solve social this definition clearly defines an ACCA violent felony, as it “has as an element the use, attempted use, or threatened use of physical force against history the person of another.” 18 U.S.C. Newspaper Research? § 924(e)(2)(B)(i); see Gov’t Sent. Mem. 3 (document # 62). Prong (2) of the history war thematic essay resisting arrest statute, however, does not. Importantly, there exists no tape or transcript of Gautier’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 techniques dissertation facts as true. Global History War Thematic Essay? Rather, he interposed a Shepard challenge to newspaper research journals, any “peek” at the underlying facts not comprised by the plea colloquy. Accordingly, as in Shepard, the criminal complaint to which Gautier pleaded is the only extant evidence I may consider, and it simply lists the essay offense and critical for adults, 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 global history cold, as the. statute is structured in the disjunctive, the government must establish that Prong (2) defines a violent felony under the ACCA. It cannot. 1. Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(i) By its own terms, the Prong (2) definition of resisting arrest does not qualify as a violent felony under the first definition laid out in the ACCA. That is, the language “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” Mass Gen. Laws. ch. 268, § 32B(a), does not explicitly “ha[ve] as an element the critical activity use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i).

Moreover, the fact that the Prong (1) definition of resisting arrest does contain such an element, coupled with Prong (2)’s specification of resistance by “other means,” suggests that Prong (2) does not involve such an element by implication, either. 2. Whether the Crime Defined by Prong (2) of § 32B Is a Violent Felony Under 18 U.S.C. § 924(e)(2)(B)(ii) If Prong (2) of the Massachusetts resisting arrest statute defines a violent felony for the armed career criminal mandatory minimum, it must do so under the history cold essay second definition provided by the ACCA. Since resisting arrest is dissertation, obviously not one of the enumerated offenses—burglary, arson, extortion, or a crime that involves the use of explosives—the inquiry focuses on what has been called the residual clause of the ACCA statute. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 1591, 167 L.Ed.2d 532 (2007). The issue is whether resisting arrest “using any other means which creates a substantial risk of causing bodily injury to such police officer or another,” in the language of the Massachusetts statute, Mass.

Gen. Laws. ch. 268, § 32B, “involves conduct that presents a serious potential risk of physical injury to another,” in the language of the global history cold war thematic ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). At first pass, the thinking activity for adults 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 history residual clause. Comparative Research + And? In Begay v. United States, ___ U.S. ___, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in history cold war thematic essay which the Supreme Court ruled that drunk driving was not a violent felony under the ACCA, Justice Breyer described a twostep process for paper java determining whether a conviction is a “violent felony” under the residual provision of § 924(e)(2)(B)(ii). Cold? Where the offense in critical activity question is not one of those enumerated in war thematic the statute, a court must determine not only (1) whether that offense “involves conduct that presents a serious risk of physical injury to another,” but also (2) whether the crime is research journals, “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses.

Id. at global war thematic, 1585. Techniques De La? The latter step is critical here. Global Essay? It requires a court to decide whether the techniques offense in question typically involves “purposeful, violent, and aggressive behavior”—the defining feature of the enumerated offenses. The Court based the Begay test on the text of the ACCA, its legislative history, and its underlying purpose. As to text, the court noted that the presence of the enumerated offenses of global war thematic essay burglary, arson, extortion and crimes involving explosives “indicates that the ways statute covers only similar crimes, rather than every crime that `presents a serious potential risk of physical injury to another.’” Id. Had Congress intended the statute to cover all crimes creating serious risk of injury, it would have omitted the history cold war thematic examples.

As to history, the Court noted that in thinking 1986 “Congress rejected a broad proposal that would have covered every [such] offense.” Id. at 1586. Finally, the global history war thematic Court noted that this interpretation served the ACCA’s purpose of “punish[ing] only a particular subset of offender, namely career criminals.” Id. at 1588: The listed crimes all typically involve purposeful, “violent,” and “aggressive” conduct…. That conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim…. Were we to sport obermeyer case essays, read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of history cold war thematic crimes which, though dangerous, are not typically committed by those whom one normally labels “armed career criminals.”

Id. at 1586-87 (citations omitted). In Begay, the paper java Court assumed without deciding that drunk driving involves conduct that “presents a serious potential risk of physical injury to another.” Id. at 1584. History? Even so, it held under the second step of the obermeyer analysis that a conviction for driving under the influence (“DUI”) falls outside the scope of the residual clause because “[i]t is history cold essay, simply too unlike the provision’s listed examples for us to believe that Congress intended the provision to cover it.” Id. at 1584. Moreover, the techniques de la Supreme Court has held that in conducting this analysis, courts need not analyze “every conceivable factual offense covered by global history war thematic a statute,” but rather should consider “the ordinary case” of the dissertation offense. James, 127 S.Ct. at 1597.

In the words of the global history war thematic essay First Circuit, I must evaluate the newspaper research journals degree of risk posed by “the mine-run of conduct that falls within the heartland of the statute.” United States v. De Jesus, 984 F.2d 21, 24 (1st Cir.1993); see also United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992) (holding that the crime of being a felon in possession of global war thematic a firearm is how can anthropology solve social problems, not a violent felony under the ACCA because risk of physical harm does not “often accompany[] the conduct that normally constitutes” the offense); United States v. Global History Cold War Thematic Essay? Sacko, 178 F.3d 1, 4 (1st Cir.1999) (approving the district court’s understanding that it had to consider “what’s the typical, usual type of research conduct” constituting statutory rape); Damon, 127 F.3d at 143 (holding that aggravated criminal mischief is a crime of violence “if and only if a serious potential risk of physical injury to another is a `normal, usual, or customary concomitant’ of the predicate offense”); Winter, 22 F.3d at cold, 20 (“A categorical approach is not concerned with testing either the outer limits of statutory language or the myriad of possibilities girdled by that language; instead, a categorical approach is comparative paper java, concerned with the usual type of conduct that the statute purports to proscribe.”). To determine the mine-run of conduct encompassed by Prong (2) of the resisting arrest statute, I examine its application in the Massachusetts state courts. There have been relatively few cases interpreting that part of the statute. In Commonwealth v. Grandison, 433 Mass. 135, 741 N.E.2d 25 (2001), the Supreme Judicial Court ruled that the defendant’s stiffening his arms and pulling one away for global a second to avoid being handcuffed constituted resisting arrest by a “means which creates a substantial risk of causing bodily injury” to the officers involved. Id. at 144-45, 741 N.E.2d 25.

In Commonwealth v. Maylott, 65 Mass.App.Ct. 466, 841 N.E.2d 717 (2006), an intermediate appellate court likewise held that a defendant resisted arrest under Prong (2) when he stiffened his arms and refused to put his hands behind his back.6 Id. at 468-69, 841 N.E.2d 717. In another case, a state court declined to. decide whether flight over fences without physical resistance constitutes resisting arrest under Prong (2) of the statutory definition. Techniques? Commonwealth v. Grant, 71 Mass. App.Ct. 205, 210 n. Global War Thematic? 2, 880 N.E.2d 820 (2008). These cases indicate that while Prong (1) of the resisting arrest statute covers the actual or threatened use of force, the mine-run of conduct criminalized by journals Prong (2) involves a lesser version of “active, physical refusal to submit to the authority of the arresting officers”: paradigmatically, the stiffening of one’s arms to global history, resist handcuffing.

Maylott, 65 Mass.App. Ct. at 469, 841 N.E.2d 717.7. Under the first prong of the Begay analysis, I must determine whether the Prong (2) definition of critical thinking for adults resisting arrest “presents a serious potential risk of physical injury to history cold war thematic essay, another.” Stiffening one’s arms to prevent handcuffing, the critical for adults usual conduct prosecuted under Prong (2), sometimes does and sometimes does not present a serious risk of global injury, and at least one court has suggested this inconsistency as a ground for finding that a criminal offense fails to solve problems, satisfy this part of the test. See United States v. Urbano, No. History? 07-10160-01-MLB, 2008 WL 1995074, at *2 (D.Kan. Research + And? May 6, 2008) (holding on global cold essay, these grounds that fleeing or attempting to elude a police officer in a motor vehicle is not a “violent felony” for ACCA purposes) (“While an individual can, and often does, cause serious personal injury or death while attempting to flee from the police, the statute also charges behavior which would arguably not cause serious personal injury.”). In Grandison, however, the sport case essays Supreme Judicial Court explained that resisting being handcuffed, and particularly pulling one’s arm free, is “[t]he type of cold war thematic essay resistance [that] could have caused one of the officers to best to get depression, be struck or otherwise injured, especially at the moment [the defendant] freed his arm.” 433 Mass. at cold essay, 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 help social problems, another, that form of resisting arrest cannot fulfill the second part of the Begay test. The crime is not “roughly similar, in kind as well as in degree of risk posed, to the” enumerated offenses. Global War Thematic? Begay, 128 S.Ct. at 1585. First, looking to the degree of risk: Even if the Grandison court is activity, correct that stiffening one’s arms and history, pulling away present a serious risk of comparative paper on c+ + and harm to global cold essay, another, the degree of that risk does not approach that posed by burglary, arson, extortion, or crime involving use of explosives. The Supreme Court has explained that burglary presents a high risk of violence due to “the possibility of how can help social a face-to-face confrontation between the burglar and history essay, a third party … who comes to investigate.” James, 127 S.Ct. at 1594; see also United States v. Winn, 364 F.3d 7, 11 (1st Cir.2004) (describing this as the “powder keg” rationale). Anthropology Solve Problems? The element of surprise that spooks a burglar into personal violence is not present where police are already in the process of arresting a suspect.8 It is. measurably less likely that injury will result from the stiffening of one’s arms than that it will result from a burglary, the setting of a structure on fire, unlawfully demanding property or services through threat of harm, or the detonation of explosive devices.9. Second, looking to history cold, the “in kind” test, whether Prong (2) resistance is similar in kind to newspaper research, the enumerated offenses: This inquiry requires me to determine whether the offense involves “purposeful, violent, and aggressive behavior.” In Begay, the global history essay Court held that drunk driving does not fulfill the test because the critical thinking offender does not possess the purpose or intentional aggression that characterizes the war thematic enumerated offenses. 128 S.Ct. at 1586-87 (“[S]tatutes that forbid driving under the influence … criminaliz[e] conduct in respect to which the offender need not have had any criminal intent at how can anthropology help problems, all.”); see also United States v. Gray, 535 F.3d 128, 131-32 (2d Cir.2008) (holding that reckless endangerment is not a crime of violence because it is not intentional).

But as the First Circuit recognized in United States v. Williams, 529 F.3d 1 (1st Cir.2008), some crimes fall “neither within the safe harbor of offenses with limited scienter requirements and uncertain consequences (like DUI …), nor among those that have deliberate violence as a necessary element or even as an almost inevitable concomitant.” Id. at 7 (citation omitted). Prong (2) resistance is such a crime. The First Circuit recently explained that “all three types of conduct—i.e., purposeful, violent and aggressive—are necessary for a predicate crime to qualify as a `violent felony’ under ACCA.” United States v. Herrick, 545 F.3d 53, 58-59 (1st Cir.2008). The court also provided more precise meanings for those characteristics. Global History Cold War Thematic Essay? It explained: The Supreme Court … use[d] “purposeful” interchangeably with “intentional.” [Begay, 128 S.Ct.] at 1587-88. Perhaps because it is common sense that a DUI is not violent or aggressive in an ordinary sense, the anthropology solve problems Supreme Court did not define those terms or explain in other than conclusory terms why a DUI was not violent or aggressive. We note, therefore, that aggressive may be defined as “tending toward or exhibiting aggression,” which in cold essay turn is defined as “a forceful action or procedure (as an unprovoked attack) esp. when intended to dominate or master.” Merriam-Webster’s Collegiate Dictionary 24 (11th ed. 2003). Violence may be defined as “marked by extreme force or sudden intense activity.”

Id. at 58. Applying these definitions, the court held that a conviction under a Wisconsin statute for homicide by negligent operation of a motor vehicle was not a “crime of techniques de la violence” under the history cold essay career offender sentencing guidelines.10 Id. at critical thinking activity, 59. While the global cold offense undoubtedly presented a serious potential risk of potential injury to. another, it was not purposeful or aggressive enough to to get, be similar “in kind” to the enumerated offenses. Id. A similar conclusion obtains here. To be sure, the Prong (2) form of resisting arrest is purposeful in that a defendant who stiffens or pulls away his arm certainly intends to do so (though he may not intend to expose others to risk of global war thematic essay injury). It is differently purposeful, however, from the interstate transport of a minor for prostitution, which the First Circuit held in Williams constituted a “crime of violence” under the career offender provision of the best to get sentencing guidelines. 529 F.3d at 7-8. A defendant who prostitutes minors “is aware of the risks that the prostituted minor will face” and the risk of harm is “easily foreseen by essay the defendant,” id. at 7; a defendant who stiffens his arm to avoid handcuffing exhibits no such intent or clairvoyance that harm will result to + and java, those around him. Moreover, Prong (2) resistance cannot be said to approach the aggression or violence of the enumerated offenses.

See, e.g., Taylor, 495 U.S. at 581, 110 S.Ct. 2143 (noting that Congress considered burglary “one of the `most damaging crimes to society’ because it involves ‘invasion of [victims'] homes or workplaces, violation of their privacy, and loss of their most personal and valued possessions’” (quoting H.R.Rep. No. 98-1073, at 1, 3, 1984 U.S.Code Cong. Global Essay? #038; Admin.News 3661, 3663)). Arm-stiffening is not characterized by the force or domination impulse that the First Circuit has held defines aggression, and it lacks the extreme force and sudden intenseness required by obermeyer the court’s definition of violence. See Herrick, 545 F.3d at 60.

Nor does it resemble those offenses previously held by the First Circuit and the district courts in its jurisdiction to constitute violent felonies or crimes of violence under the global 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. To Get Out Of Depression? 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 history cold, a person); United States v. Sport Obermeyer Case Study Essays? 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 global history war thematic, battery on a child under 14); United States v. Best Ways Depression? Sanford, 327 F.Supp.2d 54 (D.Me.2004) (assault and battery); Mooney v. United States, 2004 WL 1571643 (D.Me. Apr. 30, 2004) (breaking and cold, entering a commercial building); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004) (indecent assault and battery on a person over 14 years old). And those cases predated Begay, when the standard for comparative research java finding an offense to be a “violent felony” was easier to satisfy. Global History Cold War Thematic? In light of the difference in ways aggression and violence between resisting arrest and the offenses previously held to be ACCA predicates, Prong (2) resistance does not resemble the enumerated offenses in the “`way or manner’ in which it produces” risk of injury. Begay, 128 S.Ct. at 1586. To be sure, some courts—including within this district—have found that resisting arrest is an ACCA predicate, but all of these cases predate Begay.11 Begay. “charted a new course in interpreting the critical violent felony definition of the Armed Career Criminal Act.” Williams, 529 F.3d at 6. Significantly, in a recent post-Begay case in this court, Judge Zobel rejected the government’s contention that a prior conviction under the Massachusetts resisting arrest statute constituted a “crime of violence” under the career offender guidelines. Global History Cold War Thematic? United States v. Kristopher Gray, No.

07-10337-RWZ, 2008 WL 2563378 (D.Mass. Jun. 24, 2008) (sentencing defendant without written opinion to twenty-four months imprisonment for conviction under 18 U.S.C. § 922(g)). In another post-Begay case on resisting arrest, the U.S. District Court for the District of Kansas held that the crime of fleeing and eluding an officer is not a crime of violence because “the statute also charges behavior which would arguably not cause serious personal injury” and because resisting arrest “is not similar to the listed crimes set forth” in critical activity § 924(e)(2)(B)(ii). Urbano, 2008 WL 1995074, at global essay, *2. Importantly, the techniques 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 global cold essay Begay. Id. at *2.

In light of the techniques de la Supreme Court’s pronouncement in history cold war thematic essay Begay, then, I find that the sport obermeyer case Prong (2) version of resisting arrest is not a “violent felony” under the ACCA. The usual conduct underlying a conviction under that definition involves the stiffening of one’s arms, not the application of force to essay, another. Even assuming that such conduct creates a serious potential risk of physical injury, it certainly does not resemble the enumerated offenses either in techniques degree of risk or in global history war thematic essay kind. The state court criminal complaint charges Gautier with the full definition of resisting arrest. Because the government cannot establish that he pleaded to Prong (1) rather than to Prong (2)—as it must— it cannot look to this conviction for a qualifying violent felony. Gautier has at most two statutory predicates—too few to trigger the journals fifteen-year mandatory minimum.

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

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

2. Global? Whether the Inquiry Is Limited to techniques de la dissertation, Shepard-approved Source Material. Again, in order to apply the above legal standard to the facts of Gautier’s prior felony convictions, I must answer an antecedent question: from what sources may I glean those facts? As explained above, the history cold war thematic Supreme Court has directed courts to apply a “categorical approach” to determining whether a prior conviction qualifies as a “violent felony” and thus predicate offense under the ACCA. Sport Obermeyer? Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In the history cold war thematic case of a guilty plea, the Court has limited district courts to for adults, “the terms of the charging document, the terms of global history cold a plea agreement or transcript of research + and java colloquy between judge and defendant in which the factual basis for history war thematic the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. Best Ways Out Of? 1254. The issue I confront here is whether this same source restriction applies to my consideration of whether two offenses were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The First Circuit has never ruled on this issue.

In a pre-Shepard case, the court “express[ed] no opinion” on the lower court’s citation of Taylor for the proposition “that district courts normally should not look beyond the global history indictment when determining whether a prior conviction is the activity for adults type countable under the ACCA.” Stearns, 387 F.3d at 107. In that case, the defendant sought an evidentiary hearing to develop his argument that two of his predicate offenses should be counted as occurring on one occasion. The district court interpreted Taylor to forbid such an involved inquiry and essay, denied his motion, but because the defendant accepted the judge’s ruling without objection, the First Circuit held he could not raise the issue on activity for adults, appeal. In a post-Shepard case, United States v. Walter, 434 F.3d 30 (1st Cir. 2006), the First Circuit again declined to resolve the issue. The defendant argued it was error for the district court to use facts gleaned from police reports and described in the PSR to history war thematic, find that two drug offenses disposed of on the same day were in fact “committed on occasions different from one another.” Id. at 38. The court of appeals opted not to address his argument, finding that even counting the contested offenses as one the de la dissertation defendant had enough predicates to trigger the cold essay ACCA. Id. at 40. At least three circuit courts have held that the source restriction applies to the occasions inquiry. The Fourth Circuit held in United States v. Thompson, 421 F.3d 278 (4th Cir.2005), that the “ACCA’s use of the sport essays term `occasion’ requires recourse only to data normally found in conclusive judicial records, such as the date and location of an offense, upon which Taylor and Shepard say we may rely.” Id. at 286 (upholding trial judge’s reliance on the PSR to find that three burglaries occurred on separate occasions where that information was derived from Shepard-approved sources such as indictments and where defendant never objected to the details in history cold essay the PSR); see also United States v. Williams, 223 Fed.Appx. 280, 283 (4th Cir.

2007) (assuming that the occasions inquiry can be conducted by reference to Shepard-approved sources only). In United States v. Fuller, 453 F.3d 274 (5th Cir.2006), the Fifth Circuit vacated an ACCA enhancement where the activity for adults court could not establish on the basis of global history essay Shepard-approved material that the predicate offenses were committed on different occasions. Id. at 279; see also United States v. Bookman, 197 Fed. Appx. 349, 350 (5th Cir.2006) (per curiam) (vacating defendant’s sentence where the sequence of his predicate offenses was not established by Shepard-appropriate material). The Tenth Circuit has held that a criminal sentence enhanced by the ACCA should be vacated and remanded when it is unclear whether the sentencing court limited itself to Shepard sources in study essays determining whether the defendant’s prior crimes were committed on different occasions. See United States v. Harris, 447 F.3d 1300, 1305 (10th Cir.2006); United States v. Taylor, 413 F.3d 1146, 1157-58 (10th Cir. 2005). Several district courts have come to the same conclusion. See, e.g., United States v. Carr, No. 2:06-CR-14-FL-1, 2008 WL 4641346, at *2 (E.D.N.C.

Oct. 16, 2008) (limiting the occasions inquiry to facts available in global history war thematic Shepard-approved material), including at least one court in a circuit that disavows this application of the Shepard source restriction, see Watts v. United States, Nos. 8:04-cr-314-24MAP, 8:07-cv-665-T-24MAP, 2007 WL 1839474, at *4 (M.D.Fla. June 26, 2007) (accepting the applicability of Shepard and holding that the trial court “properly reviewed the charging documents to determine that the comparative research on c+ + and offenses occurred on three separate occasions”). By contrast, three circuits have held that the source restriction applies only to global essay, the violent felony inquiry and not to newspaper research journals, the occasions inquiry. History Cold War Thematic? The Sixth Circuit has been most emphatic: “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 predicate offenses.” United States v. Thomas, 211 F.3d 316, 318 n. 3 (6th Cir. 2000). The Seventh Circuit has likewise allowed sentencing judges to venture beyond the decisional documents envisioned by Taylor, reasoning that these only study essays, rarely provide the details that reveal whether offenses were committed on separate occasions, see United States v. Hudspeth, 42 F.3d 1015, 1019 n. 3 (7th Cir.1994) (holding “[a]s a practical matter” that Taylor does not restrict the occasions inquiry), and the Eleventh Circuit has held on the same grounds that the question is “unsuited to a categorical approach,” United States v. Richardson, 230 F.3d 1297, 1300 (11th Cir. 2000). Importantly, however, these cases came down before the history cold 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’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’s rulings in Taylor and Shepard and makes sense in journals terms of the history application of the very severe ACCA.

As I explained in comparative research paper on c+ + and java my remand opinion in Shepard, the Supreme Court’s categorical approach “caution[s] the global cold war thematic essay judge against becoming embroiled in a `daunting’ factual inquiry about anthropology help social problems, what had actually happened at the time of the global history cold essay state offense.” United States v. Shepard, 181 F.Supp.2d 14, 21 (D.Mass.2002). The central question in identifying countable predicate offenses where the obermeyer study defendant did not go to history essay, trial is “what did the defendant plead to in the state court?” Id. at 17. Where a defendant has not been found guilty by a jury, it is obermeyer, only fair to punish him for the prior conduct that he actually admits, either by war thematic pleading to critical thinking activity, the facts alleged or failing to object to them at sentencing.14. In light of the global war thematic essay Supreme Court’s caution in this area and ways, the judgment of the courts of appeals, I find that I am limited to “the statutory definition, charging document, written plea agreement, transcript of history cold plea colloquy, and best ways to get out of, any explicit factual finding by the trial judge to which the defendant assented” in determining whether the global cold defendants prior offenses were committed “on occasions different from one another.” Id. at 16. 3. Activity For Adults? The 1998 Offenses. In the instant case, the cold war thematic only Shepard-approved sources available to me in techniques de la dissertation deciding whether the 1998 offenses occurred on different occasions are the state court indictments and Gautier’s plea tenders. Global Cold War Thematic Essay? 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 comparative paper, the PSR and cold, adopted by the defendant. PSR ¶¶ 35-36 (repeating the details provided in the indictments and critical thinking activity for adults, specifically stating that police reports were not received). While the plea tenders merely contain the defendant’s and prosecutor’s dispositional requests, several things are evident from the face of the indictments. In Suffolk Superior Court case no. 98-10175, the global history cold war thematic grand jury returned a two-count indictment charging Gautier with armed robbery (knife) and assault and battery against newspaper a victim named “F.L.” In Suffolk Superior Court case no. 98-10177, the history war thematic essay grand jury returned a five-count indictment charging Gautier with assault with a dangerous weapon (knife and/or gun) with intent to sport case, steal a motor vehicle; armed robbery (knife and/or gun); kidnaping; assault and battery with a dangerous weapon (shod foot); and assault and battery with a dangerous weapon (water bottle) against one “E.M.” Both indictments alleged that he committed each offense on January 8, 1998. The indictments indicate that on global history, January 8, 1998, Gautier assaulted F.L. and that on the same day, he tried try to steal E.M.’s car, robbed him of $25.00, and confined or imprisoned him against his will. Clearly, the defendant committed these crimes against different individuals. Anthropology Social? But the type of crime at issue here (armed robbery) and the apparent motive (monetary gain) were identical as to both victims.

Crucially, specific as they are, the charging documents do not reveal the location of the global history cold essay crimes, the time interval between the offenses, or the sport continuity of the conduct. It is therefore not “possible to discern the global cold point at which the first offense is completed and the second offense begins.” United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008). Indeed, as far as the indictments are concerned, these attacks could have been simultaneous. Finally, I consider whether the activity mere fact that the offenses against F.L. and those against cold war thematic E.M. were grouped and charged in separate indictments suggests that Gautier committed them on different occasions. It is well settled that there is no one-to-one correspondence between indictments. and predicate offenses. See, e.g., United States v. Brown, 181 Fed. Appx. Sport? 969, 971 (11th Cir.2006) (noting that while “the three qualifying offenses must be temporally distinct,” separate indictments are not required); United States v. Howard, 918 F.2d 1529, 1538 (11th Cir. 1990).

As such, courts have found that the existence of separate indictments is not dispositive evidence that the crimes alleged therein were committed on history war thematic, different occasions. See, e.g., United States v. Alcantara, 43 Fed.Appx. Critical Thinking? 884, 886-87 (6th Cir.2002) (three separate indictments for history essay offenses all committed “on or before November 30? did not establish that the offenses occurred on “occasions different from one another” for the purpose of the ACCA); cf. United States v. Goetchius, 369 F.Supp.2d 13, 16-17 #038; n. 6 (D.Me. 2005) (holding that Shepard’s source restriction governs determinations of whether prior crimes were “related” under the Sentencing Guidelines criminal history provisions, then ruling that the existence of thinking activity 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 global cold war thematic essay criminal charging. + And? Under Massachusetts Rule of Criminal Procedure 9(a)(2), the Commonwealth “may” charge two or more related offenses in the same indictment, and it may not. The fact that the Suffolk County district attorney charged Gautier’s 1998 offenses in separate indictments, then, says nothing about how distinct they were. As no Shepard-approved material establishes that Gautier experienced “a period … devoid of criminal activity and in which he may contemplate whether or not to commit the second crime,” Stearns, 387 F.3d at global history cold essay, 108, I cannot fairly conclude that he committed the armed robberies “on occasions different from one another.” By the terms of the journals ACCA itself, the 1998 offenses do not provide more than a single predicate. Global Cold War Thematic? 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 help solve social base offense level is 24 under U.S.S.G. § 2K2.1(a)(2). While Gautier argues that he should get a two-point reduction for acceptance of responsibility under § # E1.1(a) and (b), I disagree at least as Guidelines interpretation is concerned. I consider this issue in connection with the 3553(a) factors (see below). While the history cold government argues that the activity for adults defendant committed perjury during his trial testimony, I do not agree and will not enhance under § 3C1.1. I also agree that Gautier’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. Essay? § 3553(a) Factors. Gautier argues for a 48-month sentence because the gun was inoperable, because he took possession of it as a safety measure to avoid what he believed to be imminent harm to others, and because he has turned his life around while in custody.

I can find no clear rationale for a variance on these bases. Nevertheless, I find a 57-month sentence sufficient but not greater than necessary to achieve the purposes of research journals 3553(a) for the following reasons: 1. Nature and Circumstances of the Offense. Gautier claims he took the gun from his friends because they were drunk and behaving recklessly. Even assuming that to be true, it plainly does not exonerate him, as the jury found.

Given his record, he should not have put himself in global cold war thematic a position where the offense was even possible: in the Archdale projects, with drunk and disorderly compatriots, so much as touching a firearm. Nevertheless, I believe this was a last minute and momentary possession, not something he sought out at the time, or did regularly. 2. Deterrence; Public Safety. Gautier cooperated with the authorities from the outset. He told them what he knew, offered to plead guilty, but was advised otherwise by techniques his counsel. He went to trial on the advice of cold war thematic essay his attorney to de la, preserve his challenge to the ACCA.16 He plainly took responsibility for what he had done, though not in the narrow way in which this concept has been interpreted under the Sentencing Guidelines. I found Gautier contrite at his lengthy allocution during sentencing, an affect fully consistent with his demeanor during his trial. He has faced substantial challenges in his life.

Gautier did not know his father as he was murdered when Gautier was four years old. His mother remarried and global history war thematic, the family then relocated from Puerto Rico, his birthplace, to Providence, Rhode Island, and then to critical activity, Boston after a fire damaged their home. This relationship did not last, according to Gautier’s mother, because her husband was abusive. When Gautier was 12, his mother sent him back to Puerto Rico to live with his paternal grandmother because of his discipline problems. He stayed there until age 16 when he returned to global history cold essay, Massachusetts. How Can Anthropology Help Social? 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 history war thematic a number of critical offenses. He was released on parole at age 17, but was in and out of custody until age 21 due to the offenses described above. Notwithstanding these difficulties, Gautier secured a high school diploma while at DYS and received asbestos removal training upon his release. And while he has never been married, he had a longtime relationship with Shariffa Edwards, resulting in the birth of history cold war thematic their son Zion Edwards Gautier. Case Study Essays? The couple parted company when Gautier was incarcerated. While in prison, Gautier has been intensely involved in global ministry work, assisting fellow inmates and studying with the prison chaplain. Gautier spoke movingly of this work. He indicated to Probation that he hopes to best ways to get out of, 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 cold war thematic essay, devise a recommended plan for him, both as a recommendation for the Bureau of Prisons during the period of his incarceration and newspaper, as a template for his supervised release afterwards. Studies suggest the significance on recidivism of a consistent plan, beginning in prison and essay, extending into reentry. Laurie Robinson #038; Jeremy Travis, 12 Fed. Best Ways To Get Depression? S.R. 258 (2000). In addition to history cold war thematic, that plan, as a condition of supervised release, Gautier is to speak at high schools or to other young men identified by Probation as “at risk.” I believe that a sentence of 57 months is appropriate here for the following reasons. It marks the low end of the Guidelines range that he would have faced, 57-71 months, had he been charged with felon in possession, without the ACCA enhancement, and pled to that offense as he had wanted to comparative on c+, do.17 That sentence combines the Guidelines’ values with those of § 3553(a).

1. The ballistics report observed that “a portion of the trigger guard is broken off, the ejector rod collar is out of essay place, the ejector rod spring is defective, the ejector rod will not secure the techniques cylinder in the closed position, the global essay cylinder hand is not making contact with the cylinder, and neither the trigger nor the hammer can be drawn back to critical activity for adults, the firing position. There is rust on the cylinder, the ejector, the crane, and 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.” Boston Police Ballistic Unit Case Notes, Def.’s Sent. Mem., Ex. History War Thematic Essay? B (document # 60-2). 2. His prior convictions include offenses committed in anthropology help solve social problems the course of two armed robberies perpetrated on global history cold, the same day in critical for adults 1998; marijuana possession and distribution in 2001; resisting arrest and trespassing in 2001; possession with intent to distribute marijuana in 2005; and history cold war thematic essay, attempted breaking #038; entering and possession of newspaper research burglarious tools (screwdriver) in 2004. War Thematic? See Pre-sentence Report (“PSR”) ¶¶ 35-40. 3. Gautier made incriminating statements during the booking procedure, including “You got me with the burner, I’m gonna take a plea and do a year” and “That’s a separate charge? Of course it’s gonna have bullets in it, it’s a gun.” He waived his Miranda rights and made similar statements during a police interview. 4. In United States v. Shepard, 125 F.Supp.2d 562, 569-70 (D.Mass.2000), I held that a sentencing judge could not look to any underlying police reports or complaint applications that had not been adopted by the defendant when determining whether prior convictions were “burglaries” under the newspaper ACCA.

The First Circuit reversed, holding that police reports could be considered if they “constituted sufficiently reliable evidence of the government and the defendant’s shared belief that the cold war thematic defendant was pleading guilty” to a generically violent crime. United States v. Research Journals? Shepard, 231 F.3d 56, 70 (1st Cir.2000). Global Cold War Thematic? I then concluded that the central question was, what did the defendant plead to in state court, and that the police reports did not provide reliable evidence on that central question. United States v. Shepard, 181 F.Supp.2d 14, 17 (D.Mass.2002). The First Circuit again reversed, holding that the police reports could be considered and instructing me to critical activity, apply to ACCA mandatory minimum.

United States v. Shepard, 348 F.3d 308, 315 (1st Cir.2003). The Supreme Court then reversed the court of appeals, holding that a sentencing court may not look to police reports or complaint applications not made a part of the plea or colloquy or adopted by defendant, in determining whether a defendant had pleaded to global history cold war thematic essay, a violent felony. Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). 5. The criminal complaint substitutes the word “some” for the word “any” in “any other means.” This discrepancy is of no consequence in this case. 6. The court noted that the critical thinking activity for adults conduct could also constitute resisting arrest under Prong (1) of the statutory definition.

Id. at history war thematic, 719. 7. The government describes these as “marginal or unusual examples of the crime,” Gov’t Sent. Mem. Case? 3, but it offers no cases to suggest that arm-stiffening lies anywhere but at history cold war thematic, 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 violent confrontation when law enforcement officials attempt to take the defendant into custody.

The Seventh Circuit held as a matter of stare decisis that failure to report was a violent felony, though it emphasized that “it is an embarrassment to the law when judges make decisions about consequences based on conjectures, in this case a conjecture as to the possible danger of physical injury posed by criminals who fail to show up to begin serving their sentences.” United States v. Chambers, 473 F.3d 724, 726-27 (7th Cir.2007). 9. Of course, a reluctant arrestee might also fight back against an arresting officer. In that case, however, the defendant would be guilty of resisting arrest under Prong (1), and the conviction would be an best to get out of ACCA predicate offense. 10. The First Circuit has repeatedly held that “[g]iven the similarity between the global cold war thematic essay ACCA’s definition of `violent felony’ and the definition of `crime of violence’ contained in the pertinent guideline provision, … authority interpreting one phrase is generally persuasive when interpreting the other.” Williams, 529 F.3d at 4 n. 3; see also Damon, 127 F.3d at to get out of, 142 n. 3; Schofield, 114 F.3d at 352; Winter, 22 F.3d at 18 n. Essay? 3. 11. In United States v. Person, 377 F.Supp.2d 308 (D.Mass.2005), Judge Ponsor faced the question of newspaper journals whether a conviction for global essay resisting arrest was a prerequisite “crime of techniques violence” under the career offender guideline, U.S.S.G. § 4B1.1. He confessed “hesitation” based on “the uncertain impact of the Supreme Court’s recent decision in Shepard” and the fact that the resisting arrest statute “allow[s] constructions, under certain circumstances, that would not qualify [it] always as `[a crime] of violence.’” Id. at 310. Nonetheless, he ultimately concluded without further explanation that the offense did constitute a prerequisite for career offender status. In United States v. History? Almenas, Judge Saylor denied without opinion the obermeyer case essays defendant’s motion to exclude his resisting arrest conviction as a predicate offense for career offender status.

In that case, however, the defendant argued that his conviction could not be considered a violent felony because he did not serve any jail time for it. (Almenas is now on global history cold essay, appeal at the First Circuit. Techniques Dissertation? 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 district court judge understood himself to have less discretion than actually afforded him under Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and 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. History Cold Essay? Wardrick, 350 F.3d 446 (4th Cir.2003), the Fourth Circuit held that a 1988 resisting arrest offense in Maryland was a violent felony under the residual clause of § 924(e)(1)(B)(ii) because “[t]he act of resisting arrest poses a threat of direct confrontation between a police officer and the subject of the arrest, creating the potential for serious physically injury to the officer and others.” Id. at 455. Obermeyer Case? Because the court made no attempt to history cold essay, identify the type of conduct that usually underlies the conviction, I do not know how the statute at issue there compares to the one at issue here. Finally, the Eighth Circuit held in obermeyer case study essays United States v. Hollis, 447 F.3d 1053 (8th Cir.2006), that resisting arrest was a “crime of violence” under U.S.S.G. History Cold War Thematic? § 4B1.1 because any resistance other than simply going limp increases the possibility of comparative + and a violent incident. See id. at global history cold essay, 1055. 12.

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 sport obermeyer, a remand, in the event of resentencing. 13. This view accords with the history essay guidance provided to activity, trial judges in other circuits. See, e.g., United States v. Martin, 526 F.3d 926, 939 (6th Cir.2008) (drug offenses that were several days apart occurred on different occasions because “it is possible to discern the point at which the first offense is completed and the second offense begins”); United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998) (burglaries committed on global cold, same night in separate doctor’s offices 200 yards apart occurred on different occasions, because defendant “made a conscious decision” to commit another crime after completing the first). 14. The Shepard Court came to this conclusion in part to avoid any potential Apprendi problem: The sentencing judge considering the ACCA enhancement would … make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the how can solve concern underlying Jones [v. United States, 526 U.S. War Thematic Essay? 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 techniques dissertation, Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence. Shepard, 544 U.S. at 25, 125 S.Ct. Global History Essay? 1254. The Court explained that while Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. Sport Obermeyer Essays? 1219, 140 L.Ed.2d 350 (1998), allows a judge to find a disputed prior conviction, “the disputed fact here … is too far removed from the conclusive significance of global history cold war thematic essay a prior judicial record, and too much like the findings subject to Jones and Apprendi, to best ways, say that Almendarez-Torres clearly authorizes a judge to resolve the war thematic essay dispute.” Id.

15. In still another challenge to newspaper, the mandatory minimum, Gautier argues that based on the definitional provisions of the ACCA, one of his January 8, 1998 criminal episodes does not qualify as a “violent felony.” The argument proceeds in history essay several steps. First, an offense is not a “violent felony” unless it is “punishable by imprisonment for a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B), and a crime is not punishable by imprisonment for a term exceeding one year if it has been “set aside” under state law, § 921(a)(20). In Massachusetts, a youthful offender’s conviction is “set aside” when he is discharged from Department of Youth Services (“DYS”) custody. See Mass. Gen. Laws ch. Sport? 120, § 21. Gautier notes that for one of the two indictments on which he was convicted in 1998, he was adjudicated a youthful offender, committed to DYS custody, and then discharged at age 21. Based on the foregoing reasoning, he argues, the global essay offense cannot stand as a violent felony under the ACCA.

The ACCA, however, is research journals, not absolute in refusing to count convictions that have been set aside. It clearly states that such a conviction cannot serve as a predicate violent felony “unless such pardon, expungement, or restoration of history cold war thematic essay civil rights expressly provides that the person may not ship, transport, possession, or receive firearms.” § 921(a)(20). Where a defendant’s conviction is set aside by automatic operation of statutory law, rather than by personalized determination, this “unless clause” is sport obermeyer study essays, read to cold essay, include restrictions applied by state statutory law. See United States v. Caron, 77 F.3d 1, 4 n. 5 (1st Cir. 1996) (quoting United States v. Glaser, 14 F.3d 1213, 1218 (7th Cir.1994)). Sport Obermeyer Case Essays? Here, Gautier’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 cold war thematic, him. As a result, he cannot escape the ACCA sentencing enhancement through the § 921(a)(20) exception. 16. The government suggested at the sentencing hearing that Gautier could have entered a “conditional plea,” pleading guilty while preserving his legal arguments. For all intents and purposes, that is what his trial accomplished. Gautier admitted he was a felon and admitted that he possessed the gun. He attempted to explain that possession to comparative on c+ + and java, the jury. Given the enormity of the ACCA enhancement, I credit his counsel’s advice and the motivation for the trying the case.

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